The Sun.
London, England, 1853-07-26 00:00:00

LAW INTELLIGENCE

ROLLS COURT.-JULY 25.

YORK AND NORTH MIDLAND RAILWAY V. GEORGE

HUDSON, M.P.

, --- -
His Honour gave judgment on the reserved point in
this case, as to whether the defendant should be decreed
to pay interest on 9,0001. which he had received for iron
more than he had paid, and which he retained in his
hands from 1840 to 1849. His Honour said he was of
opinion that plaintiffs might have required interest at
the rate of 5 per cent. from the defendant, but as they
received his cheque in 1849 without demanding interest,
he must consider it as a settled account ; and therefore,
so far as respected this demand, the bill must be dis-
missed. He bad already stated that he should reserve
the costs till after the inquiries were made.

ALLSOPP AND OTHERS V. FRASER AND ANOTHER.-IM-
PORTANT DECISION. - THE EAST INDIA PALE ALE

INJUNCTION CONTINUED.

Mr. Lloyd, Q.C., and Mr. Fisher moved, on the part
of the defendant Fraser, who carries on the business of a
porter and ale merchant in Thames-street, under the
firm of "J. H. Fraser and C 0.," to dissolve an injunc-
tion granted by his Honour in June last, restraining the
defendant from selling a spurious artic'e as Allsopp's
celebrated pale ale. The learned counsel stated that
the notice of motion was given for the following seal,
but it stood over for affidavits. It might be taken as
admitted that the ale which had been sold as Allsopp's
East India pale ale was, in truth, a very different
and an inferior article. It had been sold by
Coombes, the other defendant, and not by Fraser,
and the latter was not aware that Coombes sold it
under the denomination of Allsopp's East India pale
ale. It appeared that as to the 168 dozen which formed
part of the ale in question, it was already bottled and
in Fraser's cellar when it was sold to King, and that
after it was sold it was labelled and packed in Fraser's
cellars by Coombes. It was also admitted that an in-
voice was delivered by Coombes to King, the purchaser,
in these terms, " Bought of G. Coombes, agent to J.
H. Fraser and Co." Fraser, however, stated in his
affidavit that he was ignorant of any such invoice hav-
ing been given until after the bill was filed, and Coombes
stated that the only reason for his using Fraser's name
was that he himself had no licence, and that without
Fraser's knowledge he used his name in order to escape
the penalties of selling without a licence, and that in
truth he was not the agent of Fraser. Another ground
for the present application was that after King had
purchased the ale, he himself, through the medium of
Coombes, got 20,000 labels printed,lo,ooo of them copies
of Bass's labels, and 10,000 copies of Allsopp's ; and he
submitted that as that fact was not stated when the mo-
tion for injunction was made, the court would on that
ground alone, in accordance with the usual practice, re•
fuse to entertain the injunction. The learned counsel
then read the affidavit of Fraser, in which he denied any
knowledge that Coombes was selling the ale as Allsopp's
ale, and stating that he did not see the bottles when
labelled, and that it was usual when a large quantity of
ale was sold by an ale merchant to allow the purchasers
the use of his cellar for the purpose of labelling and
packing. He submitted, therefore, as the continuance
of the injunction was injurious to the defendant's char-
acter, and as the aefendant had no guilty knowledge
that the ale was sold as Allsopp's, the injunction should
as regarded him be dissolved.
Mr. Fisher followed on the same side.

His Honour, without hearing Mr. R. Palmer and Mr.
Gifford, instructed by Messrs. Amory, Travers, and
Smith, who appeared on the other side, said he had
seldom met with a case which had given him less embar-
rassment than he had in refusing this application. The
facts of the case as admitted by Fraser himself were, that
he had in his cellar a large quantity of damaged ale,
which was Prestonpans ale. He was at a loss to under-
stand for what honest purpose any sale whatever for the
purposes of consumption of this ale was to be allowed.
The price of it was 3s. a dozen the quart bottle, bottles
included. In the absence of evidence, he did not
believe that large dealers in ale in this metropolis would
allow ale of this description to be sold on their premises.
It W 23 admitted that Coombes bought this ale of
Fraser, and that Coombes did not buy it for any honest
purpose appeared by his own affidavit. According to
Coombes's own statement, it was bought for the purpose
of being sold at fairs and races. It was true he did not
say that in all cases it was labelled as Allsopp's pale ale.
His brother took some of it to sell at one race, and a
friend took another portion, and brought it back with
" Allsopp's pale ale' upon it, on which he made no
remark at all. If the court could protect the public
against conduct of this description, the court would be
willing enough to grant an injunction against any such
ale being sold to the public ; but the court had no
power, unless it interfered with the rights of individuals.
When Mr. King suggested that Coombes should procure
for him 200 dozen of this damaged ale, they went to
Mr. Fraser's cellar for the purpose of testing it, Mr.
Fraser bringing the sample bottle. Mr. Fraser says he
went away, and that he knew nothing about it. ✓ He
knew, however, that King came there for the purpose
of making some arrangement for the purchase of the ale,
and he (Fraser) agreed to sell Coombes 186 doz. at 3s. a
doz. Coombes had no licence, and Fraser allowed a per-
son of this description, according to his own statement,
to sell ale upon his premises. He went into the cellar
while the ale was being bottled. He says he did not see
the labels, and that he did not read them, though they
were manifest enough, and there must have been
bottles standing about. The invoice was made out as
for ale sold by him, and was delivered to the purchaser
in his presence. He said he did not know the contents
of the invoices and that they were improperly made out.
The cheque was given to him, and crossed with his
banker's name, and he paid himself out of it the 3s. a
dozen which he charged to Coombes, and handed the
difference to Coombes. Upon that state of facts he
came here and asked to dissolve this injunction. It ap-
peared to him that he (Fraser) having given every faci-
lity to Coombes to carry out this proceeding, that lie
could not dissolve the injunction, and the motion must
therefore be refused, with costs.
Motion refused with costs accordingly.