Reply. The plaintiff joins issue upon the defence. 9. Claim against a Lighterman as Common Carrier, and allernatively alleging Negligence for Damage to Goods in Transit. 1. On the 3rd of May, 1880, the plaintiff delivered to the defendant as a common carrier by water certain goods, that is to say, six casks of coffee, to be carried by the defendant from the N. Dock to the L. Dock. 2. The defendant delivered them at L. Dock in a broken and damaged state, and with the coffee in the said casks almost entirely destroyed by water. 3. Alternatively the plaintiff says that in consideration of the freight which he paid to the defendant, the defendant warranted that the lighter in which the said goods were to be conveyed was tight, staunch, strong, and fit to carry them, and that he would use due care, skill and diligence in and about carrying the said goods. 4. The said lighter was not tight, staunch, strong or fit to carry the said goods, and the defendant did not use due care, skill or diligence in their carriage, whereby the said casks were broken and damaged, and the coffee injured, as alleged. The plaintiff claims £200 damages. Defence. 1. The defendant is not a common carrier. 2. He did not warrant that the said lighter was tight, staunch, strong and fit to carry the said goods. 3. In fact, the said lighter was tight and staunch, and the defendant was not wanting in due care, skill or diligence in the conveyance of the said goods. 4. The injury to the goods was in consequence of the act of God, viz., lightning and tempest. Reply. The plaintiff joins issue upon the statement of defence. 10. Claim against a Carrier by Sea for Non-delivery of Goods. 1. On the 10th of March, 1882, the plaintiff caused to be shipped on board the defendants' steamer, the "C.," then at A., 180 bundles of iron rails, to be by the defendants as common carriers conveyed from the port of A. to the port of L. 2. On arrival at the port of L., the defendants only delivered 140 bundles of the said iron rails to the plaintiff. The plaintiff claims £60 damages. Defence. 1. The defendants did not receive the said iron rails, or any of them, as common carriers, but under a special contract in writing with the plaintiff, by which it was agreed that in consideration of a lower rate of freight paid to the defendants, that they should only be liable for any loss or injury to the said iron rails, if such loss or injury was due to their wilful act or default, or the wilful act or default of any of their servants. 2. The defendants only received 140 bundles of iron rails. 3. If they did receive a greater number, they say they have duly delivered them to the plaintiff. 4. The defendants have not been guilty, nor have their servants been guilty of any wilful act or default in connection with the conveyance of the said iron rails. Conditions Precedent («). (a) By the Common Law Procedure Act, 1852, s. 57, it was provided that a plaintiff or defendant might in any action aver the performance of conditions precedent generally, and that the opposite party should not be at liberty to deny such averments generally, but should specify in his pleading the condition or conditions precedent, the performance of which he meant to contest. Since the Judicature Act, 1873, and up to the coming into operation of the Rules of the Supreme Court, 1883, the practice in settling pleadings was to act in conformity with the above section. But now by Order XIX. r. 14, "any condition precedent the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant (as the case may be), and subject thereto an averment of the performance or occurrence of all conditions precedent necessary for the case of Conversion. See Trover. Length of copyright. Registration neces sary. Copyright (a). 1. Claim for Damages for Infringement of Copyright. The defendant has infringed the plaintiff's copyright in a book entitled "The History of Rome," registered on the day of the plaintiff or defendant shall be implied in his pleading." The effect of this is that now it will not be proper for the plaintiff in his statement of claim, or the defendant in his counter-claim to allege the performance of conditions precedent. The law implies their fulfilment until the defendant in his defence, or the plaintiff in his reply to a counter-claim by a specific denial of any one or more conditions precedent puts the question of their due fulfilment in issue. (a) The copyright in books, magazines, maps, charts, &c., is regulated by the 5 & 6 Vict. c. 45, which by sect. 2 gives to the author and his assigns an exclusive right of publication for the life of the author, and seven years after his death, with the important provision that if the seven years shall expire before the forty-two years from the first publication of the books, &c., are accomplished, then the copyright shall endure for the full period of forty-two years. When the book, &c., is published after the death of its author, the copyright lasts for forty-two years from the time of the first publication, and it shall be the property of the proprietor of the author's manuscript from which such book shall be first published, and his assigns." An action for any infringement of copyright is brought by the person in whom the copyright is vested at the time at which the cause of action arose, and he may be either the author, or his executors or administrators, or some person to whom he has assigned his interest in the copyright. But it is a condition precedent to bringing any action that the plaintiff shall prove that he has duly caused his copyright in the book in question to be registered at Stationers' Hall. (Sect. 24.) The mere fact of registration is not, however, conclusive of a plaintiff's rights, because he can have no copyright in a work until its publication. (Maxwell v. Hogg, 36 L. J. Ch. 433; L. R. 2 Ch. App. 307; Henderson v. Maxwell, 5 Ch. D. 892.) The plaintiff in order to make a valid registration must register the name of the first publisher; and if he fails to do so, the registration is void, and he may not sue. (Weldon v. Dicks, 10 Ch. D. 247; Coote v. Judd, 23 Ch. D. 727.) The 16th section of the 5 & 6 Vict. c. 45, provides that a defendant in pleading to an action for an infringement of copyright shall give to the plaintiff a notice in writing of any objection to the plaintiff's title to the copyright on which he means to rely at the trial; and if the defence.is that the plaintiff is not the author or first publisher of the book in which he claims copyright, or is not the proprietor of the copyright therein, then the defendant shall specify in such notice the name of the person whom he says is the author or first publisher, or the proprietor, together with the title of such book, and the place where, and the time when such book was first published; and "at such trial no other objection shall be allowed to be made Particulars of special damage are as follows: Loss of sale of 50 copies Loss of profit in the copyright £50 0 0 The plaintiff claims £100. on behalf of such defendant than the objections stated in such notice, or that any other person was the author or first publisher of such book, or the proprietor of the copyright therein, than the person specified in such notice or give in evidence in support of his defence any other book than one substantially corresponding in title, time, and place of publication, with the title, time, and place specified in such notice." See on this section the case of Hall v. Bradbury, 12 Ch. D. 886; Coote v. Judd, 23 Ch. D. 727. In this latter case it was decided by Bacon, V.C., that in an action for infringement of copyright, where objections to the registration are not delivered within the prescribed time, the action may nevertheless be dismissed if a defect in the registration is brought out from the plaintiff's evidence. A collection of prints, published together in a volume, is a book within Prints the meaning of the 5 & 6 Vict. c. 45; and the proper subject of copy- entitled right, though it contains no such letter-press as could be the subject of to copycopyright, and it makes no difference that the work is not published for right. sale, but only used as an advertisement. (Maple & Co. v. Junior Army & Navy Stores, 21 Ch. D. 369, overruling Cobbett v. Woodward, L. R. 14 Eq. 407.) A compiler of a directory is not justified in using slips cut from a directory previously published for the purpose of deriving information from them for his own work, but he may use such slips for the purpose of directing him to the parties from whom information can be obtained. (Morris v. Wright, 5 Ch. 279; Kelly v. Morris, 1 Eq. 697; Morris v. Ashbee, 7 Eq. 34.) In the recent case of Dicks v. Gates, 18 Ch. D. 76, the Court of Appeal Copyright intimated that as a rule there cannot be any copyright in the mere title only in of a book, and they decided in the case before them that the plaintiff something could have no copyright in the title "Splendid Misery," because copy- original. right can only exist in something original, and the mere adopting as a title a hackneyed phrase could not give any copyright. There is no valid copyright in illegal or immoral publications. (Southey v. Sherwood, 2 Mer. 435, 439.) The copyright in engravings and prints, sculptures, models, copies and casts, and designs for ornamenting articles of manufacture, is regulated by the following statutes :-8 Geo. 2, c. 13; 7 Geo. 3, c. 38; 17 Geo. 3, c. 57; 54 Geo. 3, c. 56; 14 & 15 Vict. c. 8; 15 & 16 Vict. c. 6; and the 46 & 47 Vict. c. 57 (the Patents, Design, and Trade Marks Act, 1883). It has been held that photograph copies come within these statutes. (Graves v. Ashford, L. R. 2 C. P. 410; 36 L. J. C. P. 139.) Dramatic and musical works are protected by 3 & 4 Will. 4, c. 65, and Dramatic 5 & 6 Vict. c. 45, ss. 20, 21. It has been held that the arranger of the and musical score of an opera and not the composer should be registered as the author works. of the score, which is an original composition. (Wood v. Boosey, L. R. 2 Q. B. 340; 3 Q. B. 223.) In an action for infringing the right to the exclusive representation of a drama, if it only be proved that part of the drama has been represented by the defendant, it is necessary for the plaintiff to show as a matter of fact that the part represented is a material and substantial portion of the drama. (Chatterton v. Care, 2 C. P. D. 42; 3 App. Cas. 483; 47 L. J. C. P. 545.) In the late case of Wall v. Taylor, 11 Q. B. D. 102, the Court of Appeal decided that a person whose right, under sect. 20 of the 5 & 6 Defence. 1. The plaintiff is not the author. 3. The defendant did not infringe. 2. Claim by Assignee of the Copyright for Damages for Infringe ment. 1. The plaintiff is the assignee of the copyright in a book entitled registered on the day of 2. The defendant, since the plaintiff became the assignee, has infringed his copyright in the said book. Particulars of special damage are as follows :— Loss of sale of copies The plaintiff claims £180. 3. Claim by Assignee of the Copyright of a Musical Composition for a Penalty for its Infringement. 1. The plaintiff is the assignee of the copyright in a musical composition called "Will o' the Wisp," registered on the day of Copyright Vict. c. 45, to the sole liberty of representing a musical composition has in dramatic been infringed, is entitled to recover the penalty of 408., given by sect. 2 and musical of the 3 & 4 Will. 4, c. 15, although such musical composition has not works. been represented at a place of dramatic entertainment. Now by the 45 & 46 Vict. c. 40, a proprietor of the copyright in any musical composition first published after the passing of the Act, or his assignee desirous of retaining in his own hands the exclusive right of public representation, or performance of the same, shall cause to be printed upon the title-page of every published copy of such musical composition a notice, to the effect that the right of public representation, &c., is reserved. (Sect. 1.) There are other provisions of the Act on the subject of musical compositions. An assignment of copyright must be in writing. Accordingly, when the author of a song agreed verbally with S. to part with his copyright, and subsequently by instrument in writing assigned it to L., who entered it at Stationers' Hall, it was held that the title of L. must prevail. (Leyland v. Stewart, 4 Ch. D. 419.) A newspaper is within the Copyright Act; and a proprietor of a newspaper before he can sue in respect of a piracy of any article therein. must show not merely that the author of the article has been paid for his services, but that it was written on the terms that the proprietor of the newspaper should have the copyright. (Walter v. Howe, 17 Ch. D. 708; not following Cox v. Land & Water Journal Co., 9 Eq. 324.) |