Page:The copyright act, 1911, annotated.djvu/90

 78

��Copyright Act, 1911.

��6(2).

��Grounds oi which defendant may be deprived of costs.

��Cost of issues.

��Decision of judge on question of costs not appealable.

��of the j)ai"ties should be done, is not a good ground for depriving him of his costs {m). Neither is the fact that a jjlaintifl; has commenced proceedings without previous communication, or that the tlefendant was an innocent infringer, necessarily good ground for depriving the jjlain- tiff of costs (w). When the action is one that, in the opinion of the judge, ought to have been brought in a county court, he may give a successful plaintiff costs upon that scale only (o).

A successful defendant ma}' be refused liis costs if he has been guilty of improper conduct of his case (p). If the defendant has brought the action on himself by his own indiscretion, lie may be refused costs, as where he has allowed his name to be associated with a book as printer or publisher, although in fact he has not printed the book or caused it to be printed [q). Costs have also been refused to a successful defendant because he had made an illiberal use of the plaintiff's work without acknowledgment (r), or because he succeeded upon a technical point only(s).

Where a party is generally successful, but fails upon some distinct issue raised in the case, h© will, as a rule, be entitled to the general costs of the action, but the other party will get the costs of the issue or issues on which he has been successful (^).

Probably, the only effect of this sub-section is to make the order of the judge as to costs unappealable. A judge ought to apply a judicial mind to the quastion of costs, and should only deprive a successful party of costs upon grounds similar to those upon which the judges now act in exercising their discretion under the rules of Court.

��(m) Civil Service, cj'c. v. General Sten/Ji, [1908] 2 K. B. 756.

(«) Wittman v. Oppenheim (1884), 27 Ch. D. 260; Smith v. Baihj News (1910), Cop. Cas. 190.5-10, p. 302, The Times, December 2.

(o) Clarke v. Midland Express (1908). Cop. Cas. 1905-10, p. 139.

Ip) Cobbett V. Woodward (1872), L. R. 14 Eq. 407, 414 ; 3Iaplc v. Junior Army and Navij Stores (1882), 21 Ch. D. 369, 373; Piddington v. Philip (1893), 14 N. S'. W. R. Eq. 159.

[q) Kelhj's Directories v. Gavin ^ Lloijds, [1901] 1 Ch. 374 ; Booth v. Edward Lloyd (1910), 26 T. L. R. 549.

(r) Pike V. Nicholas (1869), L. R. 5 Ch. 251 ; Cobbett y. Woodward (1872), L. R. 14 Eq. 407.

(«) Liverpool General Brokers V. Commercial Press, [1897] 2 Q. B. 1.

\t) Metzler v. Wood (1878), 8 Ch. D. 606; Page v. Wisden il869), 20 L. T. 435.

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