for every offence, on summary conviction, to a fine not. exceeding 57. (sect. 105), and it is further provided that a person shall be deemed to represent that a design is registered, if he sells the article with the word "registered," or any word or words expressing or implying that registration has been obtained for the "article" stamped, engraved, or impressed on, or otherwise applied to, the article.

No limitation of time within which an action may be brought is provided by the Act, nor is any penalty ex pressly provided to meet a case where a person describes his design as registered after his copyright has expired.

when.

If the magistrates should convict in respect of a design not within the statute, the proper remedy is to move to quash the conviction (Bessell v. Wilson, 1 E. & B. 489), and the defendant cannot be restrained from bringing an action; at least this was so where a conviction was quashed under 6 & 7 Vict. c. 65 (Reg. v. Bessell, 15 Jur. 773). Where the Comptroller refuses to register any design Appeal to Board of presented to him for registration, the person aggrieved has Trade, an appeal to the Board of Trade, who shall, if required, hear the applicant and the Comptroller, and may make an order determining whether, and subject to what conditions, if any, registration is to be permitted (sect. 47, sub-sects. 6, 7). The applicant must, within a month from the date of the decision appealed against, leave at the Patent Office, Designs Branch, a notice (Rule 16), accompanied by a statement of the grounds of appeal, and of the applicant's case in support thereof (Rule 17; and see also Rules 18, 19, 20).

It was decided under the old Copyright of Designs Acts, that the proprietor of a design could not proceed in respect of any infringement unless the proper registration marks were affixed to all articles to which the design was applied (see sect. 4; 5 & 6 Vict. c. 100), and it was not material

Dramatic

cal com

position.

whether such proprietor was a British subject or a foreigner, or whether such articles were sold abroad or in this country (see 24 & 25 Vict. c. 73; Sarazin v. Hamel, 32 L. J. Rep. (N. S.) Ch. 380).

Under the new Act, the proprietor of the design is bound to cause each article, before delivery on sale, to be marked with the prescribed mark, or with the prescribed word or words, or figures, denoting that the design is registered ; and if he fails to do this, the copyright in the design is to cease (46 & 47 Vict. c. 57, s. 51; and see Rule 32). By 3 & 4 Will. IV. c. 15, it is enacted that if any person and musi shall represent, or cause to be represented, without the consent in writing of the author or other proprietor, at any place of dramatic entertainment, any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment, composed, and whether printed and published or not, every such offender shall be liable for each and every such representation to the payment of an amount not less than 40s., or to the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever shall be the greater damages, to the author or other proprietor of such production so represented (ss. 1, 2).

The 5 & 6 Vict. c. 45, s. 20, enacts that the statute 3 & 4 Will. IV., c. 15, shall apply to musical compositions, and that the sole liberty of representing or performing any dramatic piece or musical composition, shall be the property of the author and his assigns for the term therein mentioned; sect. 21 provides that the person who shall have such sole liberty of representing such dramatic piece or musical composition, "shall have and enjoy the remedies given and provided by 3 & 4 Will. IV. c. 15, as if the same were re-enacted" in that Act (see Wall v. Taylor, Wall v. Martin, 11 Q. B. D. 102).

Where an infringement has taken place under these

statutes, it would appear that the plaintiff is entitled to recover the penalty, although he may have sustained no actual damage (ibid.; see also Planche v. Braham, 4 Bing. N. C. 19; Chatterton v. Cave, 3 App. Cas. 498), but his right to costs is now very materially restricted (45 & 46 Vict. c. 40, s. 4).

tion.

All actions or proceedings for any offence or injury Limita committed in contravention of 3 & 4 Will. IV. c. 15, must be brought, sued, and commenced within twelve calendar months next after such offence committed, or else the same shall be void and of none effect (s. 3).

It would appear that registration is not essential either to the vesting of playright, or to the right of the owner to maintain an action for infringement (Clark v. Bishop, 25 L. T. (N. S.) 908; Marsh v. Conquest, 17 C. B. (N. S.) 418); but where the proprietor of the copyright in any musical composition, shall be entitled to and be desirous of retaining in his own hands exclusively, the right of public representation or performance of the same, he shall print or 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 or performance is reserved. Provision is also made for cases in which the right of performance and copyright are respectively vested in different owners (45 & 46 Vict. c. 40, ss. 1, 2).

CHAPTER VI.

Jurisdiction of the

ON THE REMEDIES FOR INFRINGEMENT OF COPY

RIGHT (continued).

(B) Proceedings in the Chancery Division of the High Court of Justice.

THE extensive jurisdiction of granting injunctions origi Chancery nally given to the Common Law Courts by the Common Division. Law Procedure Act, 1854, is now vested in the High Court of Justice, and the jurisdiction thus vested is practically unlimited, and can be exercised by any judge of the High Court in any case in which it is right or just to do so, having regard to settled legal reasons or principles (Daniell, Ch. Pr. p. 22, 6th ed.).

Generally in all matters not in the Judicature Acts particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity are to prevail (36 & 37 Vict. c. 66, s. 25 (11); this provision does not, however, refer to mere technical rules of procedure, but to matters of substantive law, for the practice is regulated from a standpoint of convenience, and sometimes common law forms will be used, and sometimes Chancery forms, as the nature of the case may require (Bustros v. Bustros, 14 Ch. Div. 849).

The ancient Court of Chancery had formerly no power to try the legal question, upon the solution of which depended the right to maintain or defend a suit, and in cases of doubt the Court frequently refused to interfere by injunction until the plaintiff had established

his title at law. Sometimes, however, an interim injunction was granted pending the trial of the action.

By virtue of the Act 15 & 16 Vict. c. 86, s. 62, the Court of Chancery was invested with full power to determine questions of fact, without remitting the parties to another tribunal, and had, moreover, the same powers, jurisdiction, and authority, as belonged to any judge of the Superior Courts sitting at Nisi Prius (21 & 22 Vict. c. 27, s. 4).

By 25 & 26 Vict. c. 42, s. 1, the discretionary powers conferred by the above-mentioned statutes were rendered compulsory, and extended to questions of law (Fernie v. Young, L. R. 1 Ir. App. 79; and see Durell v. Pritchard, 1 Ch. 244; and the Court was further empowered to direct an issue to try any question of fact at any sitting in London or Middlesex, or at the Assizes, where such question of fact might be more conveniently tried by a jury there (sect. 2).

Although the Chancery Division may try any question of fact and assess damages either with or without a jury, this would not seem to enable the Court of Appeal, on an application for a new trial, to reverse the Court below on mere issues of fact; where, however, the issues raise. questions of law as well as fact, a new trial as to the facts may be refused, and judgment pronounced on the issues of law (Simpson v. Holliday, L. R. 1 App. Cas. 315).

So, also, it cannot be considered that the statute 21 & 22 Vict. c. 27, affected in any way the right of appeal which formerly existed (Curtis v. Platt, L. R. 1 App. Cas. 337); nor could either or any of the parties insist, upon the construction of that Act and the statute 25 & 26 Vict. c. 42, upon having the action tried by a jury, for the method of trial is entirely in the discretion of the Court (Bovill v. Hitchcock, L. R. 3 Ch. 419).

Again, it was provided that it should not be necessary for a Court of Equity to grant relief in any suit concerning any matter as to which a Court of Law had concurrent juris