Scottish Court of Session Decisions

Lord President—This is a note of suspension and interdict presented by five men of the name of Plotzker against a man of the name of Lucas.

Dealing with the matter untechnically, the object of the interdict is to prevent the respondent doing two things—(First) Using the name of “Irish Linen Company,” which the complainers say is their exclusive property, as trade name, and (secondly) passing his (the respondent's) goods as the complainers'. The Lord Ordinary has allowed proof before answer, after repelling the respondent's first plea-in-law, which is to the effect that the instance of the note is defective.

Now the point on the instance arises in this way. The instance is by five gentlemen giving their names and addresses and going on to state that they are proprietors of the business “Irish Linen Company,” That is followed up by a statement of facts in which the complainers set forth that their head office is in London, and that they have for ten years carried on business under the style and title of “Irish Linen Company”; then they state that they have a large number of branches, only one of which is in Scotland, namely, in Glasgow. Then they go on to say in considerable detail that this name “Irish Linen Company” had come to mean their shops alone, and that it would be detrimental to them if anyone else should use that name and should supply their goods, and then they say that the respondent has already set up shop under that name, and has tried to palm off his goods as if they were their goods. Now the argument addressed to us has been this—It has been contended for the respondent that the complainers are either in partnership or that they are not; that they have not actually stated that they are a partnership in so many words, but that at the same time their averments are such as to make it clear that they are really suing in respect of one business. The respondent further says that the well-known way for a firm with a descriptive name to sue is to use that descriptive name, and to add to it the name of three of the partners, and that here the descriptive name is not used as a part of the instance.

Now, in the discussion which has taken place before your Lordships it did occur to me that from one point of view the respondent might have something to complain of in the way that this bill of suspension and interdict is launched against him, because his counsel suggested that what was really being attempted here by means of not openly avowing the partnership was to try to make a property in a trade name, not for one firm that possessed that trade name, but for a sort of congeries or fasciculus of firms, which were all agreeable that they among themselves should use the name, but were banded together to prevent anybody else using it. It was argued that that was not a legal possibility.

Now I confess that if I thought the summons put him into any risk of having that question allowed to go to proof without a judgment upon the relevancy of it, I think he would have been entitled to some relief. But it seems to me all that matter is obviated by the proposal the complainers now make that they should be allowed to amend the summons by putting into the instance instead of the words “proprietors of the business ‘Irish Linen Company’” the words “carrying on business under the style of ‘Irish Linen Company.’” If that is done it seems to me the whole objection really gives way. It is quite true that the ordinary way in Scotland of suing is first of all to table the descriptive name of the firm and then to add three partners, but I do not think that is the only way.

After all, your Lordships will remember that the history of this matter is as follows — In old times the only idea of a firm was to call it by the name of the individuals composing it, but very early it was held in Scotland that a firm could sue in the name of the firm's style, where the firm's style was composed of the names of individuals. Then came the question whether the firm could sue under a descriptive name, and the leading authority on that is Antermony Coal Company v. Wingate, which decided that you could sue under the descriptive name—that was a sort of privilege of the firm—but that you must also adjoin thereto the names of three partners, in order that the defender, whatever the action was, might know who he was dealing with and have somebody to get decree of expenses against. But, nevertheless, that does not seem to me to displace the idea that the firm having to sue may always sue by tabling the name of the whole of the partners and making them sue together. Accordingly I notice that in the well-known work on Practice by Sheriff Mackay, at page 158, the law is stated thus:—“To sue in the name of the whole individual members, or to call the whole members as defenders, is always competent, whatever be the form or name of the association or company, but is inconvenient if the members are numerous.” I think that is quite a correct statement of the law. No doubt you want something more than the mere enumeration of the names, because if you do not have something more than an enumeration of the names then you are not certiorated that they are suing for a partnership debt. And therefore if the instance were to end with the list of names, I believe that would be a bad instance, but when it goes on “carrying on business under the style of ‘Irish Linen Company,’” and is followed by the statements I have already indicated, it seems to me clear as day that the action is in respect of partnership rights; and therefore it seems to me that Mr Morison is in perfect security that any further progress in this case will be on the footing that the complainers are suing in respect of a partnership right. I do not say whether they have such a right or not, because that obviously depends on facts. Therefore I think that upon the complainers amending their instance as they proposed to do your Lordships should adhere to the

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