Scottish Court of Session Decisions

Subject_1 LITERARY PROPERTY.

Booksellers in London
v.
The Booksellers in Glasgow and Edinburgh

Date: 2 December 1747
Case No. No. 3.

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A process was brought at the instance of certain booksellers in London against some booksellers in Edinburgh and Glasgow, upon the act 8th Annæ, cap. 19. and 12 Geo. II. for reprinting or importing and vending books to which the pursuers had the sole right, and concluding for the penalties in these statutes and damages; but foreseeing the difficulties of carrying through their claim for the penalties, and particularly the impossibility of proof, they waved the penalties and insisted only for damages, or rather the profits the defenders had made, and that they should give in an account upon oath. At first on my report, 4th July 1746, we found that action of damages does not lie on these statutes, but 34th December 1746 we altered and found that action of damages does lie to the extent of the profits made as to books printed here, on the act 8th Annæ; but we demurred as to books imported, on the act 12th Geo. II. because the penalties are not limited in that act to any time, and therefore we doubted whether the pursuers could wave these penalties. But upon a hearing in presence, we found that the general act of limitations 21st Elizabeth, was sufficient even in Scotland to limit the action for these penalties, (contrary to what we decided in 1737 on the Game Act,) and therefore found the action of damages competent as to these also: But upon reclaiming bill and answers, 2d December 1747, we unanimously found 1mo, That no action lies for offences against the statute 8vo Annæ, after three months from and after the offence; 2do, That no action on that statute lies for books not entered in Stationer's Hall; and 3tio, That no action upon that statute lies for damages, but only for the penalties mentioned in the statute. Upon appeal, the House of Peers pronounced this judgment 11th February 1751:

“That the action brought by the appellants in the Court of Session was improperly and inconsistently brought, by demanding at the same time a discovery and account of the profits of the books in question, and also the penalties of the acts of Parliament, which the appellants have never absolutely waved in the proceedings below, and also by joining several pursuers claiming distinct and independent rights in different books in the same action, and that therefore the points determined by the said interlocutors could not regularly come in question in this cause; and therfore ordered and adjudged that the several interlocutors be reversed, without prejudice to the determination of any of the said points when the same shall be properly brought in judgment; and it is hereby also declared that the libel in this cause is non relevant, and therefore that the said Court of Session do proceed accordingly.”

Vide the printed cases, especially that for the appellants.—N.B. It was written from London, that it was the opinion of the House, (or seemed to be,) that a suit, if properly brought, lies for profits within the term granted by the statute, but not after that term. (See Dict. No. 1. p. 8295.)