It has been proved beyond question in the present action that the defendants, without authority from the plaintiffs, the proprietors of the copyright in the ninth edition of the Encyclopædia Britannica, have imported into Canada for sale, and have there sold large quantities of a copy or reprint of that work which have been printed in the United States. The defendants set up in their answers that the English Copyright Act of 1842, Imp. 5-6 Vict. ch. 45, is not in force in Canada, and that the plaintiff's can only claim such rights as are conferred by Canadian statutes upon them. This objection is, however, one which has been determined adversely to the view suggested by the defendants, and I am unable to entertain it: Routledge v. Low (1868), L.R. 3 H.L. 100; Smiles v. Belford, 1 A.R. 436; Morang v. Publishers' Syndicate, 32 O.R. 393. The next objection taken is that the plaintiff's have disentitled themselves to recover by reason of delay amounting to acquiescence. I can find, however, in the evidence no definite statement of anything of the kind. By reason of the agreement between Messrs. A. & C. Black and their co-plaintiffs, the latter were the persons most directly concerned in enquiring into the acts of persons infringing the copyright, and we have the statement of Mr. H. E. Hooper, the managing director of the Clarke Company, that he did not know that the defendants' reprint was being sold extensively in Canada until just before the defendants were notified of the plaintiffs' intention to proceed against them. It is, of course, also to be borne in mind that the degree of delay which might stand in the way of the success of a motion for an interlocutory injunction would by no means necessarily be an answer to an action: see Hogg v Scott, L. R. 18 Eq. 444; and here whatever delay has taken place on the part of the Blacks after they seem to have heard reports of the sale of pirated copies in Canada, are far from sufficient to establish acquiescence on their part. I think the plaintiff's have established their right to an injunction perpetually restraining the defendants, the Imperial Book Co., Limited, their servants and agents, from importing into Canada any copies of the Encyclopædia Britannica, ninth edition, or of any parts thereof printed in any country outside the British dominions which infringe the copyright of the Street, J. 1903 BLACK V. IMPERIAL Street, J. 1903 BLACK v. IMPERIAL plaintiffs Adam & Charles Black; and ordering the said defendants, the Imperial Book Co., Limited, to deliver up for cancellation all and any copies so printed in their possession. The plaintiffs are also entitled to an account of the profits realized by the defendants, the Imperial Book Co., Limited, from the sale of any such copies within one year before the commencement of this action. This is an equitable remedy to which the plaintiffs' seem entitled under the authorities, although it is not specially given by the Act, because the importation by the defendants is declared to be unlawful, and the plaintiffs have been injured by their unlawful act: Colburn v. Simms (1843), 2 Hare 543; McLaughlin on Copyright, p. 86; Copinger on Copyright, 3rd ed., p. 301. The defendants, the Imperial Book Co., Limited, must also pay the costs of the action to the hearing inclusive. Should the plaintiffs' require it, there will be a reference to ascertain the profits realized by the Imperial Book Co., Limited, and the costs of the reference will be reserved. The action will be dismissed as against the defendant Hales. He has, however, made large profits out of the sale of the unlawfully imported copies of the plaintiffs' book, and escapes accounting for them by pleading the statute, and under the circumstances I think he should pay his own costs. A. H. F. L. Will — Legatee predeceasing Testatrix Right of Husband and Children of A testatrix by will made in 1901, directed her estate to be divided into four THIS was an application by the executors of the will of Hannah Hunt for direction under Con. Rule 938. The testatrix by her will dated March 23rd, 1901, directed that her estate should be divided into four equal shares, and that one share should be paid to each of her four children, naming them. She died on March 23rd, 1902. Susannah Jewell, one of her daughters, died intestate on April 2nd, 1902, leaving a husband and two infant children. The executor now applied for direction as to whether John Jewell, the husband, took a share in one-fourth of the estate of the testatrix, his wife having predeceased the latter. The matter was argued before STREET, J., in Chambers, on January 26th, 1903. F. S. Mearns, for John Jewell and the executors. F. W. Harcourt, for the infants. The following cases were cited on the argument: Eager v. Furnival (1881), 17 Ch. D. 115; Johnson v. Johnson (1843), 3 Ha. 157; In re Scott, [1901] 1 K. B. 228; also R.S.O. 1897, ch. 128, sec. 36. Per Curiam. The one-fourth share of the estate of the testatrix which would have gone to Susannah Jewell, had she survived the testatrix, was by virtue of sec. 36* of the Wills *R.S.O. 1897, c. 128, s. 36: Where any person, being a child or other issue of the testator, to whom any real or personal estate is devised or bequeathed for any estate or interest not determinable at or before the death of such 1903 Jan. 26. 1903 IN RE Act, R. S. O. 1897, ch. 128, divisible between her surviving husband and her children, the husband taking one-third. HUNT. A. H. F. L. D. C. 1903 Feb. 2. [DIVISIONAL COURT.] REX V. HAYES. Conviction-Importing Aliens under Contract to Labour-Scienter—Irregularity 60-61 Vict. ch. 11 (D.)—1 Edw. VII. ch. 13 (D.). Conviction of defendant under 60-61 Vict. ch. 11 (D.), as amended by 1 Edw. VII. ch. 13 (D.), for unlawfully causing the importation of an alien from the United States into Canada under contract to perform labour in Canada by working at a factory, quashed as bad on its face, because not stating that he "knowingly "did the act charged, which indeed neither did the information allege. Held, also, that this omission from the information and conviction was not a mere irregularity or informality or insufficiency within the meaning of section 889 as the Criminal Code, 55-56 Vict. ch. 9 (D.). ON August 25th, 1902, the defendant Hayes was convicted by George T. Denison, Esq., police magistrate at Toronto, for that he did at the city cf Toronto and at other places unlawfully prepay the transportation and assist and encourage the importation and immigration of Frederick De Rocher, an alien and foreigner, from the United States of America into Canada under contract and agreement made previous to the importation and immigration of the said alien and foreigner to perform labour and service in Canada, viz., to act as a workman at the factory of the Toronto Carpet Manufacturing Co., Limited, in said city of Toronto, in the service and employ of the said company, contrary to the form of the statute in such case made and provided. A fine of $50 and costs was imposed. Upon the application of the defendant the conviction and papers were person, dies in the lifetime of the testator leaving issue, and any of the issue of such person are living at the time of the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will. brought into the High Court by certiorari, and a motion was made to quash the conviction upon the following grounds:— 1. That Frederick De Rocher was not an alien or a foreigner, but was a Canadian and a British subject. 2. That there was no contract by the defendant Hayes with De Rocher prior to his importation that he should perform work or labour in Canada. 3. That there was no evidence that the United States have enacted and retained in force laws of a character similar to the Act under which the conviction was made. 4. That the United States laws given in evidence were not similar in character to the Act under which the conviction was made. 5. Similar to 3 and 4. 6. That Hayes supposed De Rocher to be a British subject. 7. That it was not Hayes but a brother of De Rocher who brought him in. 8. and 9. Denying any offence against the law. The evidence shewed that the defendant went to Lowell, Mass., U.S., and engaged Frederick De Rocher and his brother Pierre to come to Toronto to work at the Toronto Carpet Co.'s factory, and that at Lowell he paid their fares to Toronto, and that upon their arrival in Toronto they were placed by the defendant in charge of a man who took them to a boardinghouse, and that they were put to work in the factory. It appeared, also, that Frederick De Rocher was born in June, 1877, at Thompsonville, Connecticut, and that his parents were born in Canada, and had resided for several years in the United States, and that he himself had always resided there. The motion was heard on January 15th, 1903, before a Divisional Court consisting of STREET and BRITTON, JJ. G. H. Watson, K.C., for the motion. J. G. O'Donoghue, for the prosecutor. The argument proceeded upon the points whether the remedy by certiorari lay in this case; and whether it must be presumed that Frederick De Rocher was still a British subject, because though born in a foreign country he was born there of D. C. 1903 REX V. HAYES. |