1859. GAMBART v. SUMNER, Great Britain, that is to say, of a certain print called "The Departure, Second Class," and of a certain other print called "The Return, First Class ;" and the plaintiff, during all the time aforesaid, had and was lawfully entitled to, and still hath and is lawfully entitled to the sole right and liberty of printing and reprinting the said prints, and the copyright thereof: Yet the defendant, well knowing the premises, but disregarding the statute in such case made and provided, and contriving and wrongfully and unjustly intending to injure the plaintiff, so being the proprietor of the said prints and copyright as aforesaid, after the 24th day of June in the year of your Lord 1777, and while the plaintiff was such proprietor of the said prints and copyright as aforesaid, did publish and sell, and cause and procure to be published and sold, divers base copies of each of the said prints, whereof the plaintiff so was the proprietor; which copies were engraved and made without the consent of the plaintiff and against his will; and did expose to sale divers other copies of the said same prints without the consent and against the will of the plaintiff; and did engrave, etch and work, and copy and sell, and caused to be engraved, etched, worked, and copied and sold, in part, by varying in part from the main design, divers other copies of the same prints, without the consent and against the will of the plaintiff, by means whereof, &c. Plea: not guilty.-Whereupon issue was joined. At the trial, before Pollock, C. B., at the sittings in Middlesex after Trinity Term, a witness proved that, seeing exposed for sale in the window of the defendant, who was a stationer, two pirated copies of the prints mentioned in the declaration, the copyright in which was vested in the plaintiff, he purchased them. The plaintiff's counsel admitted that he could not prove that the defendant knew that those prints were piracies of the plaintiff's prints. The de fendant proved that he bought the prints of one Prince, and that he did not know the plaintiff had a copyright in them. The learned Judge told the jury that if they believed the evidence they would find a verdict for the plaintiff, which they did accordingly. Leave was reserved to the defendant's counsel to move to enter a verdict in his favour, if the Court should be of opinion that it was essential to prove knowledge. Lush now moved accordingly.-The defendant is not liable, because it was not shewn that he knew that the prints he sold were piracies of any print in which any person had a copyright. The 8 Geo. 2, c. 13, s. 1, enacts, that “Every person who shall invent and design, engrave, etch, or work in mezzotinto or chiaro-oscuro, or from his own works and invention shall cause to be designed and engraved, etched, or worked in mezzotinto or chiaro-oscuro, any historical or other print or prints, shall have the sole right and liberty of printing and reprinting the same for the term of fourteen years, to commence from the day of the first publishing thereof, which shall be truly engraved with the name of the proprietor on each plate, and printed on every such print or prints;" and if any person "knowing the same to be so printed or reprinted without the consent of the proprietor, shall publish, sell or expose to sale, &c., he shall forfeit," &c. The 17 Geo. 3, c. 57, enacts, that if any person "shall publish, sell or otherwise dispose of, or cause or procure to be published, sold or otherwise disposed of, any copy or copies of any print, &c., without the express consent of the proprietor or proprietors thereof," then the proprietor may recover damages in a special action on the case. That statute must be read in connection with the 8 Geo. 2, c. 13, and was not intended to give a right of action when penalties could not have been sued for under the former Act. 1859. GAMBART v. SUMNER. 1859. GAMBART v. SUMNER. 66 EXCHEQUER REPORTS. That appears to have been the opinion of Lord Tenterden in Murray v. Heath (a). [Channell, B., referred to West v. Francis (b).] That case does not decide the present question. BRAMWELL, B.—We are all of opinion that there should be no rule. The language of the 17 Geo. 3, c. 57, is plainly against the defendant. It is not necessary to go through the several Acts at length. The 8 Geo. 2, c. 13, made it necessary to prove knowledge in proceedings against a person for selling a pirated engraving or print. The 17 Geo. 3, c. 57, which was passed to amend the former Act, omits the word knowingly," and enables the person having a copyright in a print or engraving to maintain an action against persons found selling pirated copies of it without proof of guilty knowledge. This Act refering to the former statute and confirming it, the argument is stronger than if, in the preceding statute the legislature had been silent on the subject. The case of West v. Francis (b), cited by my brother Channell, could not have been decided as it was, unless the Judges had assumed or decided that the proposition now contended for on the part of the defendant is untenable. WATSON, B., concurred. CHANNELL, B.-I am of the same opinion, both upon the construction of the statute and on the ground that the case of West v. Francis (b) is not distinguishable from the present. POLLOCK, C. B., concurred. Rule refused. (a) 1 B. & Adol. 804. 810. (b) 5 B. & Ald. 737. 1859. PICKARD V. BRETZ. Nov. 15. IN this case the sheriff of London had seized the goods A bill of sale described the Minories, in of the defendant under a writ of fi. fa., when one Chambers grantor as claimed them under a bill of sale. The sheriff then ob- George Street, J. B., of No. 9, tained an interpleader summons, which was heard before the city of Martin, B., at Chambers, when the plaintiff objected that London, hotelkeeper. The the affidavit of the attesting witness to the execution of affidavit the bill of sale was defective. By consent of the parties, the matter was referred to the Court, and Martin, B., stated the following question for their opinion: annexed to the bill of sale, described him of London, in of sale men the said bill tioned :— Held, "A bill of sale describes grantor as John Bretz, of No. 9, the said city George Street, Minories, in the city of London, hotelkeeper. The affidavit (a) annexed to the bill of sale describes him as the said John Bretz, of No. 9, George Street, Minories, in the said city of London, in the bill of sale mentioned.-Query: Does this satisfy the of Sale Act?" that there was no sufficient said description of the occupation Bill of the grantor H. James, for the plaintiff.-There is no sufficient description of the residence and occupation of the person giving the bill of sale, within the meaning of the 17 & 18 Vict. c. 36. The 1st section of that Act requires that (a) The material part of the affidavit was as follows: "That the paper writing hereunto annexed, marked (B.), is a true copy of a bill of sale and of every schedule or inventory thereunto annexed, or therein referred to, and of every attestation of the execution thereof. That the said bill of sale was made and given on the day it bears date, being of the bill of sale. 1859. PICKARD v. BRETZ. every bill of sale of personal chattels, "or a true copy thereof, and of every attestation of the execution thereof, shall, together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same," &c., be filed within twenty-one days. The intention of the legislature was that the affidavit should contain such description. If, indeed, the bill of sale contained the requisite description of the residence and occupation, and the affidavit identified them, so that, if false, perjury could be assigned upon it, that might be sufficient. But here the affidavit does not identify the description of the residence and occupation mentioned in the bill of sale, but only of the person it does not say "the said John Bretz so described or truly described in the bill of sale." Hatton v. English (a) is an express authority that it is not sufficient that the bill of sale contains a description of the residence and occupation, but there must be filed together with it an affidavit containing such description. J. Philips, for the claimant.—The bill of sale and affidavit constitute a sufficient description within the meaning of the statute. In Hatton v. English there was no reference in the affidavit to the description in the bill of sale. Here there is a complete identification. The statute does not prescribe any particular mode of description. This affidavit refers to the bill of sale, so that perjury might be assigned upon it: Prince v. Nicholson (b). Moreover, it is submitted that it is not necessary that the affidavit should contain the description. The statute only requires that there shall be filed an affidavit of the time the bill of sale was given, and a description of the residence and occupation of the person giving it; therefore, the statute was (a) 7 E. & B. 94. (b) 5 Taunt. 333. |