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June 18, 1908.]
is discourteous. He talked about opinions and beliefs I told him I had no opinion and there the matter ended. Facts were the thing that were wanted.
Then the discourtesy lay in saying what his opinion was ?—Yes, I treated him as a gentle.
man.
When did you first raise this ingenious ples that he disobeyed your orders? You did not mention it on the night of the accident ?—I never discussed the matter.
The first intimation we had that Mr. Klimanek was charged with disobeying your orders was when we received the writ?-I don't know anything about the writ,
CHINA OVERLAND TRADE REPORT.
along Kennedy Road and all went well until at the corner near the washerman's houses, where the road is being widened. Thinking the passage rather narrow for two he went in front, the lady coming behind. A Chinaman emerged from behind the blocks with a creaking wheel barrow. The horse got frightened and in trying to get away dropped its fore feet down a twelve feet precipice. He fell with it but fortunately escaped with his life. He got blankets and with assistance tried to rais it but it got excited and fell down another cliff into a contractor's yard and had to be shot. On returning to the town he called at the office to explain to Mr. Smith, but he was not there and subsequently he telephoned to him. He did not say he wished to talk about a settlement, he only wished to explain. Mr. Smith at that time told him not to trouble as there was plenty of time. Next day he saw Mr. Smith and explained matters. Mr Smith suddenly said: well, I think the best way to settle it is for you to pay $225, though it is worth more than that. Defendant replied that he did not consider himself liable but offered $100. The matter Whose idea was it to charge him with dis-ended there and when he saw his friends obeying your orders P-I arranged he was to ride on the Race Course,
You never treated Mr. Klimanek as a pro. spective purchaser ?-I have said so.
When Mr. Klimanek informed you of the accident you never said he had no business to be riding this horse on Kennedy Road ? — Certainly not. I never argued with the young man about it.
I put it to you that you never charged him with disobeying your orders until you con- sulted your solicitors P-I did not think about the matter at all until I got the letter from htm.
Re-examined-It was perfectly clear at the first interview that Mr. Klimanek was to ride on the Race Course. The defendant agreed to that stipulation. There was no reference to his riding on Kennedy Road from his house,
Mr. G. L. Duncan, of Messrs. MacEwan and Frickel, said he sat in the same office as plain- tiff, their desks being about ten feet apart. He remembered defendant coming to see Mr. Smith in March and though he took no notice of the conversation he heard portions of it. He knew it was about horses. As defendant was about to leave he heard him say he would ride the horse once round the Race Course and Mr. Smith replied,-You can take it a dozen times if you like.
Cross-examined.-At the beginning of the conversation he heard defendant say he heard the horse was for sale. When Mr. Klimanek, called at the office after the accident the value
of the horse was mentioned as probably being $350.
Mr. Dickson said the defence was an absolute denial of the statement that Mr. Klimanek was told only to ride the horse on Kennedy Road and nowhere else. Mr. Klimanek's version of the story was that he went to Mr. Smith and told him that he heard the horse was for sale. Mr. Smith replied that the price was $350 and the defendant replied that he could not afford that. Mr. Smith advised him to try the horse and see if it suited him, at the same time giving him a card to take to the stable. Mr. Smith told him he could ride up or down hill and gave him
a card which was carte blanche, The horse was brought to his house and on the way to the Race Course the accident hap. pened. The horse fell a distance of 42 feet and Mr. Klimanek was lucky to escape with his life.
they did not think he was liable and he wrote a letter saying he could not increase his offer to which Mr. Smith did not reply and he thought he did not wish to proceed with the matter. Consequently he was suprised to receive a letter from Mr. Smith that he should send his draft through the Bank. He saw a solicitor who advised him to withdraw his offer of $100, and he did 80.
Cross-examined-He bad sold his other horse for $100 and he thought he might get a better horse for $150 or $170. When he went to Mr. Smith about the horse, he had no idea what price he would pay because he could not tell the quality of the horse patil he sat on it. Mr. Moir told him the horse would be about $200 or $250, but he thought he could get it cheaper.
Did you expect Mr. Smith to come down from $350 to $250 P-I thought as it was a big expense Mr. Saith would be glad to get rid of it. Mr. Gegg, of Kennedy's Stable stated he never heard the horse was for sale.
His Honour remarked that a horse was very often for sale when a good price was offered, but in this case he did not think anything turned upon that, He could not find that the horse was only to be ridden on the Race Course, and judgment would therefore be for the defendant.
Saturday, 6th Jane.
IN ORIGINAL JURISDICTION.
BEFORE MR. H, H. J. GOMPERTZ (ACTING PUISNE JUDGE).
THE FLORIDA WATER CASE.
377
of the
because of the too great similarity of the plaintiffs' trade mark, and the defendants made a second application for registration of the “two giris" alone, on surroundings. They did not attempt to use it a blank paper without any in the form in which it was applied for, and continued to use it in the form registration which had been refused. The plaintiffs were not claiming the exclusive right to the words "Florida Water" bor to a label containing flowers, but they did olaim registered and all the material parts of it. They the exclusive right to the label which they had also claimed they were entitled to an injunction to prevent the defendants from so doing. There had been a determined pushing by the defendants of their Florida Water ever since the conclusion of the criminal trial, Defendants had now said, although the plaintiffs had just heard of it, that they were about to change their label.
Sir Henry Berkeley opposed the motion on the ground that plaintiffs were in dispute with the defendants, and so far as that dispute had gone in a Court of law, the verdiot had been in favour of the defendants, and in so far as the. allegation of the plaintiffs, that the defendants have been using for the sale of their Florida Water a label which so closely resembled the trade mark of the plaintiffs as to be calculated to lead persons to believe that the Florida Water sold by the defendants was manufactured by the plaintiffs, so
far as that allegation went,
it had been made negative by the verdict of a jury. Defendants had a trade mark in respect to their Florida Water, and having a trade mark they were entitled to add to any label, on which that trade mark appeared, no matter even if it had been copied from the trade mark of the plaintiffs, so long as the label used by the defendants, taken as a whole, did not so closely resemble the trade mark of the plaintiffs 88 to be calculated to lead people lato the error, which his friend, Mr. Slade, and Baid would lead them iato. The defendant had not done anything that they were not entitled to do. They had no desire to pass off their goods as those of the plaintiffs, an they had no need to shield themselves under the plaintiffs' name. The fact was, plaintiffs were afraid of defendants' competition. Defendants maintained they were entitled to change their label at will, and to prevent the aspersion on their good name. They expected a label would be ready on Monday, After the trial defendants had resumed the selling of their Florida water which they had given an undertaking not to do so pending the trial,
His Lordship allowed the application for interim injhnotion,
Tuesday, 9th June.
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT.
THE MUEDER TRIAL.
An application was submitted by Messrs. Lanman and Kemp, of New York, for an in- terim injunction against the Kwong Sang firm
The motion for the arrest of judgment to restrain them from infringing the plaintiff's moved by Hon. Dr. Ho Kai in his defence of registered trade mark, and from selling or offer. the three prisoners who were found guilty by a ing for sale any scented water in bottles bearing jury of having murdered three Chinese in sucb a label. Mr. M. Slade, instructed by December 1906 again came on for further Mr. Deason, of Messrs. Deacon, Looker and argument before the Chief Justice (Sir Francis Deacon, appeared for the applicants, and Sir Piggott) and the Acting Puisne Judge (Mr. H. Henry Berkeley, K.C., instructed by Mr. G. K. H. Gompertz). The Hon. Mr. Rees Davies Holmes, appeared for the respondents.
(Attorney General), instructed by Mr. Bowley, Mr. Slade, in presenting the case for appli-Crown Solicitor, conducted the case for the cants, stated that the defendants were quite a new firm, started in 1996, and he put in the label which they had used at first, obviously a copy of the plaintiff's label, with differences, of course Subsequently they changed this label in favour of the two girls" label. Later they moved the "two girls" from the porners the
to
Defendant said he was an assistant in the employ of the Holland China Trading Com- pany. He bore out the statement of his counsel that he went to see Mr. Smith, telling him that he heard the horse was for sale and that he had taken a fancy for it. Mr. Smith told him the horse was absolutely sound, and when he expressed the fear that the waler might become weak in his front legs through being : ridden on the hard road Mr. Smith assured him that the horse was all right. He told Mr. Smith he could not afford to pay $350 for the horse, but the latter said the horse would suit bim and that being a good horseman he could teach it all sorts of tricks. Further he advised centre and left the remainder of the label to him to try the horse and he was sure he would a designer. The defendant who had given like it and he consented to do so, especially evidence regarding the label in the criminal as he thought Mr. Smith would eventually proceedings, admitted that there was an advant- reduce his price as most people stated a age in having a label similar to the plaintiffs high price at first. He did not intend to take label. What advantage of a legitimate nature the horse far lest it should become lame and he could be obtained by taking any points of mentioned the Race Course not with the inten- similarity from the label of a rival trader was tion of suggesting that he would only ride it hard to understand, but it was clear that an there. He received a card from Mr. Smith to advantage of a fraudulent nature could be Mr. Gegg, to whom he went and asked to be obtained. Following up the history of the shown the horse. That evening he tele- case the next step taken by the defendants phoned to Mr. Gegg to send the horse was to apply for registration of the mark they round to his house, He rode the horse were then using. That application was refused,
Crown, and Mr. M. Slade and the Hon. Dr. Ho Kai, instructe i by Mr. G. K. Hall Bratton, appeared for the respondents.
The Attorney-General, in continuance of his argument, quoted numerous cases in support of his contention that the evidence of the police sergeant as to the finding of the watch in a box belonging to the first prisoner was quite admissible.
The Chief Justice wanted to know what view the Attorney-General would take if the interpreter had failed to caution the prisoner before the officer questioned him. Would he reject the evidence in such circumstances when it came before the Court?
The Attorney-General replied that he would because the law provided that certain formalities were required.
The Chief Justice asked if the Attorney- (eneral could mention a considered judgment 'in which the point had been dealt with. He
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