Scottish Court of Session Decisions

On 13th February 1901 the Dunlop Pneumatic Tyre Company presented a petition and complaint for breach of interdict against M. G. Rose, cycle agent, West Nicolson Street, Edinburgh, praying the Court to find that the respondent had been guilty of contempt of Court and breach of interdict.

The petitioners stated that on 31st October 1900 Lord Kyllachy had granted decree interdicting the respondent from infringing their patent for the invention of improvements in rubber tyres and metal rims or felloes of wheels for cycles and other light vehicles; that on 27th October 1900 the respondent was sequestrated, and Mr R. A. Craig was appointed trustee; that since the date of her sequestration the respondent had, notwithstanding the interdict, illegally and in breach of the interdict, infringed the petitioners’ patent, and that in particular “respondent sold, or knowingly allowed to be sold, within her premises at 37 West Nicolson Street foresaid on 1st December 1899, to one Edward Thomas Cheer, tyre dealer, of 160 Clerkenwell Road, London, E.C., one pair of outer covers ‘reconstructed,’ said pair of outer covers, either singly or in combination, not having been supplied by petitioners to respondent, nor sold under any consent, licence, or agreement from them to respondent, and being an infringement of said lettes-patent, against the infringing of which by respondent the petitioners had obtained the said decree.”

Answers were lodged by the respondent, in which she denied that she had at any time infringed the interdict granted against her. She further averred as follows—“In particular, the respondent denies that she sold or knowingly allowed to be sold, at 37 West Nicolson Street aforesaid, on 1st December 1899, to the party named in the complaint or to any other person, a pair of outer covers such as are described in the complaint. Such records of her business as were kept by the respondent were taken possession of by the trustee and are not now available, but she is certain that no such transaction took place at or about the date libelled, or at any other time subsequent to the interdict proceedings and prior to the realisation of the business.”

A note was presented to the President of the Court by the petitioners, in which they stated that the particular sale complained of, “which of course was subsequent to the date on which interdict had been granted, was per incuriam described as having taken place on 1st December 1899 instead of 1st December 1900, the date when it actually took place,” and therefore respectfully craved his Lordship “to move the Court to allow petitioners to delete the figures ‘1899’ occurring in line three at the top of page 5 of the said petition and complaint, and to substitute therefore the figures ‘1900.’”

The respondent objected to the prayer of the note being granted, on the ground that her answers had been framed on the footing that the sale complained of took place on the date stated in the petition and complaint.