1822. The KING against GRIFFITHS, mandamus; and, although there may be objections to the mode of removal in this case, still, as it appears on the face of the return that there is good ground for the removal, the only effect would be, that, if we were to make an order for restoring the defendant to his office, it would become the duty of the corporation to remove him again, in a more formal manner, for his preceding neglect of duty. Under these circumstances, therefore, I think we shall best exercise the discretion vested in us by refusing to grant a peremptory mandamus. HOLROYD J. Concurred. BEST J. We are not obliged to do so absurd a thing, as to order a person to be restored to an office, (however irregularly he has been removed from it,) who ought to be removed again the moment that he is restored. The writ of mandamus was not intended to enable a party, by taking advantage of the want of form, to defeat justice, In the cases to which we have been referred, the Court in the exercise of its discretion refused the writs, although the parties against whom they were prayed, had acted irregularly. It appears from the judgment in Rex v. The Mayor of London (a), that that refusal was not hastily given, but after much consideration by the Court. The Judges who decided that case, were not referred, in the course of the argument, to Rex v. Axbridge, which is an authority in point, or I think they would not have doubted as they appear to have done. The question for us to decide is, whether we shall advance justice by granting or refusing the writ. Mr. (a) 2 Term Rep, 177. Griffiths Griffiths has long ceased to do the duties of the office in the Tolzey Court, and he has now incapacitated himself by accepting a situation which requires his constant at ́tendance, above 100 miles from Bristol. It has been urged, that by an arrangement with his brother magistrates, he may always be absent from London on Saturday, Sunday and Monday, and therefore, that he could attend in his place at Bristol on Monday. But the sickness of a magistrate might interrupt this arrangement, or the state of the town might require the attendance of more than the ordinary number of magistrates. Ought any man to take an office, the duties of which are to be performed at a great distance from London, on the expectation of the uninterrupted continuance of this arrangement amongst the police magistrates? By restoring Mr. Griffiths, instead of advancing justice, which is the object to be 'maintained by a mandamus, we stop the course of justice at Bristol, until he shall be regularly removed, and another person again appointed in his place. Peremptory mandamus refused. 1822. The KING against GRIFFITHS. WEST against FRANCIS. Wednesday, the The vendor of DECLARATION stated, that the plaintiff was proprietor of seven prints therein described, and a print, being a copy in part of another, by that he was entitled to the sole right and liberty of varying in some printing and reprinting the same; yet, that the defend ant published, sold, and disposed of 500 copies of each trifling respects from the main design, is liable to an action by the proprietor of the original; and that although the vendor did not know it to be a copy. VOL. V. 3 C of 1822. WEST against FRANCIS.. of the said prints, without the consent of the plaintiff in The Scarlett, Marryat, and Reader shewed cause. question is, whether the prints sold to the defendant can be considered as copies of the plaintiff's prints, within the meaning of the 17 G. 3. c. 57. That statute enacts, "That if any engraver, etcher, print-seller, or other person, shall engrave, etch, or work, or cause, or procure to be engraved, etched or worked in mezzotinto, &c. or in any other manner, copy in the whole or in part, by varying, adding to, or diminishing from the main design, &c." Now, it is clear, that an action would lie against the party who copied in part, by varying, adding to, or diminishing from the main design. The statute then goes on," or shall print or reprint, or import for sale, or cause or procure to be printed, reprinted, or imported for sale, or shall publish, sell, or otherwise dispose of any copy of any print, which shall be engraved, &c. in any part of Great Britain, without the express consent of the proprietor thereof in writing, &c. &c.; then every such proprietor, &c. shall by a special action upon the case to be brought against the person so offending, recover such damages as a jury, &c. shall give, together with double costs of suit." The question is, whether that which would clearly be a copy within the former part of the section, is also a copy within the latter branch. The whole clause forms one entire sentence, and a copy with variations is evidently within the latter as well as the former. Indeed, such a copy comes within the popular sense of the word. Suppose a party copied a writing without inserting the capital letters, or that he copied a map and put the names of the places in italics, each of these, strictly speaking, would be a copy, though not a copy in all its parts. So there may be a copy of a print with small variations, although it be not an exact copy. In Gahagan v. Cooper (a), the declaration confined the case to the selling exact copies. Here, the declaration contains a count for selling copies in part by small variations from the main design, and therefore, that point does not arise: and the objection, if it be one, is on the record. The 8 G. 2. c. 13. s. 1. is a statute on the same subject, and enacts, "That every person who 1822. WEST against FRANCIS. 1822. WEST against FRANCIS shall invent, design, engrave, &c. in mezzotinto or from his own work and invention, shall cause to be designed and engraved, &c. any print, shall have the sole right of printing and reprinting the same for the term of 14 years; and that, if any printseller, or any other person whatsoever, shall engrave, &c. as aforesaid, or in any other manner copy and sell, or cause to be engraved, etched or copied, and sold in the whole or in part, by varying, adding to, or diminishing from the main design, or shall print, reprint, or import for sale, any such print or prints, or any parts thereof, without the consent of the proprietor or proprietors thereof in writing, signed by him in the presence of one or more credible witnesses, or knowing the same to be so printed or reprinted, without the consent of the proprietor or proprietors, shall publish, sell, or expose to sale, or otherwise, or in any other manner dispose of such print without the consent, then such offender shall forfeit the plate on which such print shall be copied, &c. to the proprietor of such original print, and shall forfeit five shillings for every print found in his custody, either printed or exposed to sale, contrary to the true intent of this act, &c." The copy there contemplated, was clearly one varying from the original and not an exact copy. In that act, it is true, it is necessary, in order to make the seller liable to the penalty, that he should know that print to be a copy, but that qualification is omitted in the 17 G. 3. c. 57., the legislature evidently intending to extend a further protection to the proprietors of such works, and for that purpose making the seller of every copy responsible to the author. Gurney and Denman, contrà. This is a penal act; for the defendant is thereby rendered liable to double costs. |