fraudulent or obvious imitation has been applied to it without Chap. XV. the proprietor's consent (o). For every such offence the registered proprietor may recover Remedies. in an action against the offender a sum not exceeding 50l. as a simple contract debt, but not more than 100l. in respect of any one design (p). If he so elects, the registered proprietor may sue for damages and an injunction (q). Any person who falsely describes a design applied to an article Offences sold by him as registered is punishable on summary conviction punishable summarily by a fine of 51. (r), and, if he sells an article marked with the by fine. word "registered" or any word implying that the design is registered, he is deemed to so describe the article (s), and any person who, after the expiration of copyright in a design, uses the word registered," or any word implying that there is subsisting copyright in a design, is liable to a like fine (†). INTERNATIONAL COPYRIGHT. As regards literary and artistic works first published in a International foreign country, certain statutes, styled the International Copy- copyright. right Acts (u), were passed, authorizing the making of Orders in Council directing that the author should have copyright in the same during the period specified by the Order, which could not exceed the period during which authors of the like works first published in the United Kingdom had copyright. In 1885, an International Conference was held at Berne, and a draft convention agreed to for giving to authors of literary and artistic works, first published in one of the countries parties to the convention, copyright in such works throughout the other countries parties to the convention. For the purpose of carrying such convention into effect in His Majesty's dominions, the International Copyright Act, 1886, was passed (v); and, in 1887, an Order in Council (x) was issued adopting the Berne convention, which Order was to be construed as if it formed part of the Act of Chap. XV. 1886 (y). That convention was adopted by England, Belgium, France, Germany, Italy, Spain, Switzerland, Japan, and some other less important states, and these countries formed what was called the "Copyright Union." Within this union the copyright of authors belonging to any one of these countries was protected in the other countries. All the above Acts have been repealed by the Copyright Act, 1911 (2), which contains the following provisions in relation to international copyright. An Order or Orders in Council may be made directing that the Act of 1911 (except any part excluded by the Order) shall apply: (i.) to works first published in a foreign country in the same manner as if they were first published within the dominions to which the Act extends; (ii.) to literary, dramatic, musical, and artistic works, the authors of which were at the time of the making of the work subjects or citizens of a foreign country to which the Order relates, in the same manner as if they were British subjects; (iii.) in respect of residence in a foreign country to which the Order relates, in the same manner as if that residence were residence within the dominions to which the Act extends (a). The Order may provide that the term of copyright shall not exceed that conferred by the law of the country to which the Order relates; that the enjoyment of the rights conferred by the Act shall be subject to any conditions and formalities prescribed by the Order (b); that the provisions as to ownership of copyright shall be modified, having regard to the law of the foreign country; and that the provisions as to existing works shall be modified (c). In order to prevent infringements in a foreign country a British author must take proceedings in the courts of that country (d). A person suing in this country to prevent infringement of a foreign copyright must show that he is entitled to protection in the foreign country, and then his remedy depends on the law of this country (e). The owner of the British copyright in a book first published in a foreign country can prevent the importation into Great Britain of copies printed in that foreign country by the proprietor of the copyright there (f). CHAPTER XVI. COMPANIES-SHARES-DEBENTURES-DEBENTURE STOCK. LORD LINDLEY defines a company as follows: 66 By a company is meant an association of many persons who con- Chap. XVI. tribute money or money's worth to a common stock, and employ it for some common purpose. The common stock so contributed is Company denoted in money and is the capital of the company. The persons who contribute it, or to whom it belongs are members. The proportion of capital to which each member is entitled is his share. Shares are always transferable; although the right to transfer them is often more or less restricted" (a). defined. The difference between an ordinary partnership and a company Difference has been explained by James, L.J., thus (b): "An ordinary partnership is a partnership composed of definite individuals bound together by contract between themselves to continue combined for some definite object, either during pleasure or during a limited time, and is essentially composed of the persons originally entering into the contract with one another. A company or association (which I take to be synonymous terms) is the result of an arrangement by which parties intend to form a partnership which is constantly changing, a partnership to-day consisting of certain members, and to-morrow consisting of some only of those members along with others who have come in, so that there will be a constant shifting of the partnership, a determination of the old and a creation of a new partnership, and with the intention that, so far as the partners can by agreement between themselves bring about such a result, the new partnership shall succeed to the assets and liabilities of the old partnership. This object, as regards liabilities, could not in point of law be attained by any arrangement between the persons themselves, unless the persons contracting with them authorized the change by a novation, or unless, by special provisions in Acts of Parliament, sanction was given to such arrangements." It will be observed that a company as thus defined differs from an ordinary partnership in that any member of the company can (a) Lindley on Companies, p. 1. See Reg. v. Registrar of Jt. St. Companies, [1891] 2 Q. B. 598. (b) Smith v. Anderson, 15 Ch. D. 273. between a company and a partnership. Chap. XVI. transfer his share so as to enable the transferee to take his place in the company, whereas in an ordinary partnership no partner is at liberty without the consent of all the other partners to retire from the firm and substitute another person in his place as partner, and an assignment of his share does not entitle the assignee to become a partner (c). Unincorporated companies. But in most respects an unincorporated company may be regarded as being a mere private partnership, which, in English law (d), has no existence as a legal persona distinct from the members of the firm. Each partner is the agent of the others to contract on behalf of them all as to matters within the scope of the business (e), and creditors contract with the partners as individuals. It follows that every member of an unincorporated company is at common law personally liable, as a partner, without limit, for the whole of the debts contracted by the company while he is a member (ante, p. 11); and, as between the members, each has a right to make his co-partners contribute in proportion to their shares towards the payment of the partnership debts (f). But at common law one partner could not sue other partners for contribution, and in the case of unincorporated companies with a large number of members, it was practically impossible to obtain a dissolution or winding-up of the business and an adjustment of the rights of the members inter se (g). Now, however, under the Limited Partnerships Act, 1907, there may be partners whose liability is limited to the amount of capital contributed by them (h). It has been said that unincorporated companies with transferable shares are illegal at common law because the privilege of having transferable shares can only be acquired by charter or statute (i). A great authority is, however, of opinion that this view is wrong, ship Act, 1890, s. 24. (g) See, e.g., Van Sandau v. Moore, 1 Russ. 441, where a bill was filed against nearly 300 defendants; see the observations of Lord Eldon, C., as to the history of joint stock companies, at pp. 458 et seq., and 470 et seq. (h) 7 Edw. 7, c. 24. Ante, p. 11. (i) See Duvergier v. Fellows, 5 Bing. 267; 34 R. R. 578; Blundell v. Winsor, 8 Sim. 601; 42 R. R. 242. Lindley on Companies, 180. and that such a company is not illegal at common law, unless it Chap. XVI. can be shown to be of a dangerous and mischievous character tending to the grievance of His Majesty's subjects (j). It must be remembered that the formation of a company, association, or partnership consisting of more than twenty persons for the purpose of carrying on business for gain is prohibited by the Companies Act, 1908, unless registered (k). On the other hand, a corporation is, in the eye of the law, a Corporation. person distinct from the "corporators," i.e., the members for the time being of the corporation, and the rights and obligations of the corporation are not exerciseable by or enforceable against its members; so that the only remedy of creditors of a corporation at common law is against the property of the corporation, and they have no rights against the separate property of any member of the corporation as such (1). Nor can a member of a corporation substitute another person as a corporator in place of himself without authority from charter or statute (m). At common law, also, every association of persons formed in order to carry on and share the profits of a business must be either a partnership or a corporation (n); there is no tertium quid such as the modern incorporated joint stock company, of which the individual members, though liable personally for debts of the company, may yet be liable only to a limited amount, and not, like ordinary partners, without limit. A corporation (0) may, at common law, be created either by Royal Charter or by Act of Parliament; but the Crown could not, in creating a corporation, impose any personal liability for its debts on the members of the corporation until, in 1826, a statute empowered it to do so (p). In 1834 the Crown was enabled by statute (q) by means of Companies letters patent to confer on a company certain privileges, such as under letters patent. |