The non-inclusion of verbal statements leaves a large class of frauds untouched by the Act. Goods, for instance, which have passed through the Customs under cover of an explanation placed upon their coverings may be sold retail without the explanation, and with a verbal false description; as, of course, may also goods which, bearing no description at all, or no false description, could not be stopped on importation, or home-made goods. In his opinion, on the case above referred to (k), Mr. Poland, Q.C., expressed the view that the imitation of the crystals of Demarara sugar in beet-root sugar, and its sale as Demarara sugar, was not an offence under the Act. Sales upon such verbal false statements may, however, amount to the offence of cheating, or obtaining money by false pretences (1), if they are deliberate false statements of matters of fact known to the person charged, and are made in order to induce, and do actually induce, the buyer to purchase. Goods may be passed off as those of the manufacture or merchandise of some person other than the person whose they are, without any explicit description of them as the goods of the first person, or any piracy or colourable imitation of his trade-mark or trade-name. This fraud forms the ground of a civil action (m). Such imitations are false trade descriptions applied to the goods under sect. 3 (2) (n). Words forming part of the goods upon which they appear cannot, it would seem, be taken to be a trade. description applied to those goods within the meaning of the Act, although they may, in fact, give or suggest some description, statement, or other indication within the definition just cited, for the description is treated in the definition as an addition to the "goods," which are complete without it. This is the view taken by the Customs (k) Ante, p. 477. (m) Book I., Chap. XVI., p. 379. (n) Infra, p. 491. authorities in the application of sect. 16 (o). For instance, English words in verses on Christmas cards; the title of a book; the words fast and slow upon the regulator of a watch; mottoes and words of friendship on handkerchiefs, crockery, and so forth, are not treated by the Customs authorities as indications that the goods were produced in an English-speaking country. "On such goods, made abroad, it has been thought" by the Customs authorities "wiser to regard (with some exceptions) English wording which goes no farther than above mentioned (that is to say, which does not go into such statements as 'printed in England,' or very superfine cards,' or 'London lever watch,' &c.), as part of the 'goods,' and as not, therefore, rendering the goods liable under the Act, even though the general appearance given to them may be on this account, and on account of the wording, unquestionably English" (p). 6 be a trademark. The trade description may be a trade-mark or part of a Trade detrade-mark (q), or may include a trade-mark (»); but the scription may case of a false name or initials is dealt with specially (s). (a.) Number, &c.]-This sub-section is directed to Number. descriptions applied to coverings (t) purporting to contain a specified or indicated number, quantity, &c. of goods, as well as to descriptions attached to the goods themselves. It meets frauds, such as the practice of marking upon cotton goods the number of laps or folds by a figure so placed as to be "commonly taken " to indicate the number of yards in the marked piece, the true number of yards being in fact less than the number marked (u). It has been questioned whether the words in the clause cover indications of width, dimension, and weight per unit (0) See M. M. A. Report, 1890, Appendix I., p. 275, a paper handed in by Mr. Follett, Solicitor of the Board of Customs, from which the illustrations in the text are taken. (p) From the paper referred to in the last note. (2) Sect. 3 (1). "False trade (r) Sect. 3 (2), p. 491. (u) See the evidence of Mr. Place of origin. of length, which are of great importance in the textile trades; but it is submitted that they do, and it is said, that the Manchester magistrates have so construed them (v). Measure.]-The description of casks of beer as barrels in an invoice sent with them, has been held to be a statement within the definition that the casks contain thirty-six gallons each (x). Weight.]-In a civil case it has been held that goods done up in cases and supplied according to contract, the cases being marked as one pound cases, could not be forced upon a purchaser if they were actually under the weights indicated, although not deficient by more than an alleged customary allowance, on the ground that the purchaser could not sell them without committing an offence under the Act (y). (b.) Place or country.]—This sub-section was regarded by many of the advocates of the bill as the most important clause of the definition; it is under cover of it that goods made abroad and so marked as to suggest that they are made in England, are brought within the Act, and are made liable to seizure by the Customs authorities in accordance with sect. 16 (2). The chief difficulty in the application of this clause of the definition arises from the fact that the clause is apparently framed on the assumption that all goods will be wholly made or produced in one place or country, whereas, in fact, many kinds of goods are worked upon in several before they are finished and ready for the market, or are made up of parts made or produced in different countries. The difficulty, however, is partly met by the definition of a false trade description as one which is false (v) See note (u) on previous page. (x) Budd v. Lucas, (1891) 1 Q. B. 408, Pollock, B., and Charles, J. (y) Hooper v. Balfour, W. N. (1890) 61; 62 L. T. 646; Green and Balfour's Arbitration, W. N. (1890) 139, 156, Kay, J., and C. A. (2) And in accordance with the agreements arrived at by the Commissioners at the International Convention, Conference of Rome, in 1886. This convention has not been ratified. in a material respect, for this reduces it to a question of fact. No doubt any Court, in determining whether the indication of a particular country as the place of manufacture was false in this sense or not, would be guided by the custom of the trade in the goods concerned, that is, supposing it to be consistent with honesty. The description of goods, partly made in each of two countries, as made in a third, would, it may be assumed, be indefensible under any custom, unless it fell within the general saving of sect. 18 as a "conventional" or "generic" description lawfully and generally used at the passing of the Act, as, for instance, French polish, American leather, or Indian rubber. The last-mentioned section, however, extends to a trade description of place or country, calculated to mislead as to the place or country where the goods to which it is applied were actually made or produced, the goods not being actually made or produced in the place or country indicated or suggested, only if there is added to the trade description, immediately before or after the name of that place or country, in an equally conspicuous manner with that name, the name of the place or country in which the goods were actually made or produced, with a statement that they were made or produced there (a). From this has arisen the now familiar notices, "made in Germany," "made in France," &c. It is to be observed that the provision in sect. 18 requiring the addition of the name of the place or country of actual manufacture is only applicable where the trade description is calculated to mislead (b). It is not necessary, for instance, to mark Morocco leather or Brussels carpets as made in England, since the term is not calculated to lead any buyer to think the leather was made in Morocco or the carpet in Brussels. By sect. 10 (2)– origin. "In the case of imported goods, evidence of the port Evidence of of shipment shall be prima facie evidence of the place country of or country in which the goods were made or produced." And the port of shipment is stated in the Customs (a) Sect. 18, infra, p. 498. (b) Cf. “So nearly resembling," ante, p. 471. Customs practice as to country of origin. Goods finished abroad. Foreign goods finished in England. Imports from inland country. entry (c), which is now itself a trade description applied to the goods referred to by it (d). The practice of the Customs authorities, under sect. 16, with regard to the matters above referred to, was described by Mr. Follett, to the Committee of 1890, in the following terms (e): "As general rules, the board have acted on the principle that goods must (as indeed is in accordance with sect. 10 of the Act) be held primâ facie to have been the make or produce of the country from which they last come; and that if a qualifying description to that effect is remonstrated against on the ground that it would be untrue as to a material part, there must be a statement as to that part. For instance, if there were an importation of German cutlery with the name of an English dealer, and a qualification of made abroad were objected to on the ground that the handles (taking it to be knives), or the woodwork (taking it to be planes), were made in England and sent out by the dealer to be fitted, then it would be required that these should be stated, blades (or woodwork) made in Germany. Similarly (although as to the important part of the goods the circumstances are just reversed), it was required that if British goods were sent abroad to be finished in any respect, as, for instance, yarns to be dyed, that fact must be stated, dyed abroad, when they are re-imported. "As regards goods coming in in an incomplete state, or merely as parts of an intended complete article, the board have felt that they could do no more than deal with them as they stand, taking care that there is no description either of the parts themselves, or of the whole goods to which they are going to be added, which can form an incorrect indication as to the make of the imported portion." In the case of goods imported through the ports of a country other than that of their origin, for example, Swiss goods coming through a French port, and marked as Swiss, the practice of the authorities is to detain them until a declaration by the importer, or other evidence regarded as satisfactory, is tendered to show that the goods are in fact Swiss. (c) Below, p. 486. (e) Ante, p. 479, n. (d) M. M. A., 1891, s. 1. |