there was an actual deception, though, of course, proving any individual instance of actual deception will greatly strengthen the plaintiff's case." 1 "Of course, the fact, if proved, that persons of ordinary intelligence have in truth been deceived, would be very material in assisting the Court in coming to the conclusion that the mark or the picture complained of was calculated to deceive; but even the evidence that one person has actually been deceived is not conclusive, as was held by Malins, V.-C., in Civil Service Supply Association v. Dean, where he said in effect that the witness was really too foolish : qui vult decipi, decipiatur." 3

up

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2

4

In these "passing-off" actions, as they are called, the plaintiff must, in the first place, establish that the "get" which the defendant has now adopted for his goods is in some essential particulars the "get-up" by which the plaintiff's goods are recognised in the market. Then, as a rule, there is only one substantial issue: Is what the defendant is doing calculated to deceive the trade, or the public, or both? Evidence of those conversant with the particular trade is admissible on this issue. At the same time it must be remembered that this is a question for the Court, and not for the witness, to decide. Hence such evidence is only admissible to aid the judge in forming his own opinion on the question. If the defendant's goods, on the face of them and having regard to surrounding circumstances, are calcu lated to deceive, evidence to prove the intention to deceive is unnecessary and therefore inadmissible; but if a mere comparison of the goods, having regard to surrounding circumstances, is not sufficient, then evidence of intention to deceive is admissible, provided such an intention has been clearly alleged in the pleadings. This evidence may be supplied by admissions, oral or in writing, or by inference from conduct."

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1 Per Parker, J., in Birmingham Small Arms Co. v. Webb (1906), 24 R. F. C. 27. "It is not necessary that proof should be given of persons having been actually deceived" per Lord Westbury, L. C., in Edelsten v. Edelsten (1863), 1 De G. J. & S. at p. 200, cited with approval by Farwell, J., in Bourne v. Swan & Edgar, Ltd., [1903] 1 Ch. at p. 227.

2 (1879), 13 Ch. D. 512; and see the judgment of Lord Watson in Singer Manufac turing Co. v. Loog (1882), 8 App. Cas. at pp. 39, 40.

3 Per Farwell, J., in Bourne v. Swan & Edgar, Ltd., [1903] Ch. at p. 223. Hunt. Roope, Teage & Co. v. Ehrmann, [1910] 2 Ch. 198.

Claudius Ash, Sons & Co., Ltd. v. Invicta Manufacturing Co., Ltd. (1912), 29

R. P. C. 465.

6 Birmingham Small Arms Co. v. Webb (1906), 24 R. P. C. 27; Hennessy v. Keating (1907), 25 R. P. C. 125.

7 Saxlehner v. Apollinaris Co., [1897] 1 Ch. 893.

Let us assume that the defendant has used a label which in its general appearance greatly resembles the plaintiff's label, although a closer examination will disclose many minute differences. The purchaser of the package does not take the two labels and compare them; he never has them both before him at the same time. He sees one label, and from its general appearance concludes that the goods inside the package were manufactured by the plaintiff. He probably would not have arrived at this erroneous conclusion if he had had both labels before him for comparison. And even if the first purchaser is not deceived by the resemblance, purchasers from him may be deceived. Hence persons conversant with the particular trade will be allowed to state whether in their opinion the resemblance between the two labels is so close as to be likely to cause one to be mistaken for the other. But their opinions are not conclusive: the judge must look at both labels and then decide the question for himself.2

This action of passing-off was the creation of the Court of Chancery. At common law there was, of course, the action of deceit, by means of which damages could be recovered by any one who was induced to purchase an article which he did not want because it was a colourable imitation of the article which he did want. In such an action, however, the purchaser would have to establish that the defendant had contrived the resemblance in order to deceive the public. He would also have to show damage. Again, such a purchaser, on discovering the deception which had been practised upon him, could rescind the contract, return to the defendant the inferior article which had been foisted upon him and sue the defendant for the price as money received by the defendant to the use of the plaintiff. But these were the remedies of the individual members of the public who had been actually deceived; there was no remedy at common law for the manufacturer or owner of the goods which had been thus colourably imitated. Yet clearly his custom would be to some extent diminished, and the reputation of his goods possibly impaired. On the other hand, in an action for "passing-off," the person whose wares, wrappers or labels are imitated takes up arms nominally to protect the public;

1 Johnston v. Orr Ewing & Co. (1882), 7 App. Cas. 219. And see North Cheshire, &c., Brewery Co. v. Manchester Brewery Co., [1899] A. C. 83; Payton v. Snelling (1900), 17 R. P. C. 628, 635.

2 But see London General Omnibus Co., Ltd. v. Lavell, [1901] 1 Ch. 135.

but he really seeks to defend his quasi-proprietary right to a trade name or label, and to defend himself from unfair competition. If he succeeds in such an action, he is entitled to an injunction and also either to damages or, if he prefers, to an account of the profits which the defendant has made by using the deceptive name or label.

CHAPTER XV.

JOINT TORTS AND CIVIL CONSPIRACIES.

JOINT TORTS.

So far we have assumed that the tort on which the action is founded is the act of a single individual. Often, however, injury is caused to the plaintiff by the joint act of two or more persons. These may either act in concert, each taking some part in the proceeding, or one of them may do the wrongful act at the bidding of the others. In either case the wrongful act is a joint tort; and all persons concerned in it are liable jointly and severally for all consequent damage.1

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It is not necessary that each tortfeasor should be present and personally take part in the actual commission of the wrong. If a master commands his servant to commit a trespass or assault and the servant does so in the absence of his master, both are joint tortfeasors. That his master ordered him to do so will be no defence. For the warrant of no man, not even of the King himself, can excuse the doing of an illegal act; for although the commanders are trespassers, so are also the persons who did the fact." 2 And if judgment be given against the servant, he cannot recover any contribution from his master; and any previous promise to indemnify him against the consequences of his wrongful act will be void.

A person who is injured by a joint tort has a right of action against each of those who were concerned in its commission. But he is not bound to sue them all; he may, if he prefers, sue only one or two of them, and the liability of the others will be no defence for those sued and will not mitigate the damages recoverable in respect of the joint tort.

1 Co. Litt. 232 a; 1 Wms. Saund. 291 f; Sutton v. Clarke (1815), 6 Taunt. 29; Greenlands v. Wilmshurst, &c., [1916] 2 A. C. 15. And see

2 Per cur. in Sands v. Child and others (1693), 3 Lev. at p. 352. Mill v. Hawker and others (1875), L. R. 10 Ex. 92; Att.-Gen. v. De Winton, [1906] 2 Ch. 106; Cory & Son, Ltd. v. Lambton and Hetton Collieries (1916), 86 L. J. K. B.

3 Shackell v. Rosier (1836), 2 Bing. N. C. 634.

But a judgment against these is a bar to any subsequent action for the same tort against any one else who was jointly liable with them, even though the judgment in the first action has not been satisfied.1 The plaintiff can only bring one action for a joint tort; he cannot recover twice over from different defendants damages for the same injury. So a release given to one or more of the tortfeasors is a release to them all, for "the cause of action is one and indivisible.":

Moreover, according to the strict rule of the common law, there is no contribution between tortfeasors; that is to say, if a plaintiff who has recovered damages against two defendants for a joint tort levies the whole damages on one of them, that one has no claim against the other for his share of such damages. Thus a principal, who employed another to commit a tort on his behalf, cannot be compelled to compensate his agent for the damages and costs which he has had to pay the person injured. The proprietor of a newspaper cannot make his editor recoup him the damages and costs recovered by a plaintiff in respect of a libel which the editor carelessly inserted without the knowledge of the proprietor. Moreover, the jury have no right to split up the damages awarded into the shares which in their opinion each defendant ought to pay."

The rigour of the common law has, however, been somewhat modified in recent times. It is now held that where the wrongful act in question is not clearly illegal, but may have been done in good faith, contribution or indemnity can be claimed. Thus, an auctioneer, who in good faith sells goods on behalf of a person who has no right to dispose of them, is entitled to be indemnified by that person against the claim of the rightful owner. A similar distinction exists in the case of an express indemnity. If a person is instructed to do an act which is clearly tortious, and the person so instructing him undertakes to indemnify him from the consequences of such act, no action will lie; yet if the act which he is instructed to do is not of itself manifestly unlawful, and he does not know it to be so, he can recover thereon."

1 Brinsmead v. Harrison (1872), L. R. 7 C. P. 547.

2 Per A. L. Smith, L. J., in Duck v. Mayeu, [1892] 2 Q. B. at p. 513.

3 Merryweather v. Nixan (1799), 1 Sm. L. C., 12th ed., 443; but see Shepheard

v. Bray, 1907] 2 Ch. 571.

Colburn v. Patmore (1834), 1 Cr. M. & R. 73.

5 Damien v. Modern Society, Ltd. (1910), 27 Times L. R. 164.

6 Adamson v. Jarvis (1827), 4 Bing. 66.

See the remarks of Lord Denman, C. J., in Betts and another v. Gibbins (1834), 2 A. & E. at p. 74; Burrows v. Rhodes and Jameson, [1899] 1 Q. B. 816.