REPORTS AND NOTES OF CASES.

Province of Ontario.

HIGH COURT OF JUSTICE.

Falconbridge, C.J.K.B., Magee, J., Mabee, J.]

Infant - Custody

RE FAULDS.

[May 29.

Rights of father-Fitness-Religion Temporal welfare of child-Abandonment-R.S.O. 1897, c.

259.

Upon an application by the father of a girl of eleven years for an order against the maternal grandmother for delivery of custody, it was shewn that the mother of the child was dead, that the child had lived with the grandmother since she was three years old, and had been brought up as a Protestant, while the father had become a Roman Catholic and desired to educate the child in that faith."

Held, upon the evidence, that the applicant was not an unfit person to have the custody of his daughter; that there was no agreement that the child should remain with the grandmother always or until her death, and the father had not abandoned his parental rights; that the child herself had no serious religious convictions; that she would have a better home and a better education in her father's house than with her grandmother; that it would be for her advantage to be brought up in the same home with her only brother; and that no case had been made out which would justify a refusal to give effect to the father's right to the custody of his child.

While the welfare of the infant is in one sense paramount, the paternal right to custody and control is supreme, unless a very extreme case can be made out shewing that it is imperative for the protection of the child that the Court should interfere with that right.

The reluctance of the Court to separate brothers and sisters is very great.

It is the duty of the Court to enforce the wishes of the father as to the religious education of his children, unless there is strong reason for disregarding them. The Court has jurisdiction to

interfere, even against the father's wishes, to prevent the religious convictions of his child being interfered with; but the circumstances must be such as to satisfy the Court that there has been an abandonment or abdication of the paternal right, or at least that the training of the child has imbued it with such deep religious convictions that to disturb them would be clearly dangerous to its moral welfare.

The Children's Protection Act, R.S.O 1897, c. 259, has no application to the case of a child situated as this one was. Order of ANGLIN, J., affirmed.

W. E. Middleton, for the father. W. A. McMaster, for the grandmother.

Anglin, J., Trial.]

MACOOMB v. TOWN OF WELLAND.

[June 1.

Highway-Dedication-User by public-Action-Parties-Attorney-General-Municipal corporation-Ownership in fee.

In an action for a declaration that a portion of the river road lying between Burgar and Dorothy Streets in the Town of Welland was not a highway, but the private property of the plaintiffs, it appeared that the road had been continuously travelled by the public since the district was first settled, and that in 1855 B., the plaintiffs' predecessor in title as owner of the lands adjoining this portion of the road, agreed with the municipal corporation of the township in which these properties were then situate, to dedicate to the public as highways and to open up for traffic Burgar and Dorothy Streets, and in consideration of his doing so the corporation agreed to close up and convey to him the portion of the river road in question. For this purpose a by-law was passed, admitted by the defendants to be legal and sufficient, and a conveyance to B. was duly executed, which, as admitted, vested the fee in him :—

Held, that if a highway now existed, it must be by virtue of an express or implied dedication by the owner since 1855; and, as such private dedication would vest in the municipality not merely the surface, but the soil and freehold of the highway, it was unnecessary for the purposes of the present action that the Attorney-General should be added as a party.

The by-law enacted that B. should have the right to close up the road as soon as Burgar and Dorothy Streets should be opened for public use and travel. Until 1873 or 1874 Burgar Street was unfit for use as a public highway, and the public con

tinued to use the river road, and even after Burgar Street was opened and used, the user of the portion of the river road in question continued, and no attempt was made at any time to close it, the public continuously used it without objection, and public money was spent upon it from time to time.

Held, following Mytton v. Duck (1866) 26 U.C.R. 61, that, even if the user for the first eighteen years should not be taken into account, because of the special clause in the by-law of 1855, there had been, since the right to close became absolute, thirtytwo or thirty-three years of uninterrupted user before the bring ing of this action, sufficient to establish conclusively a dedication. Lynch-Staunton, K.C., and Cowper, for plaintiffs. Armour, K.C., and Pettit, for defendants.

Divisional Court.]

[June 12.

VOKES HARDWARE Co. v. GRAND TRUNK RY. Co.

Mechanics' lien-Time for registering lien-Completion of work -Work to satisfaction of architects-Work done after registration of lien.

Under a contract made with the railway company for the erection of a railway station, the work was to be done to the entire satisfaction of certain named architects. The plaintiffs, who were sub-contractors for a part of the work required to be done, ceased work on the 20th May, under the belief that their work was completed, and their secretary-treasurer, on the 8th of June, made an affidavit stating such to be the fact, with a view of having a lien registered. The architects, however, were not satisfied and required a further work to be done, and work was accordingly done in June, and again in August, and it was not until the 4th of August that the architects were satisfied and accepted the work. The plaintiffs' lien was filed on the 24th of June.

Held, that, under the contract the architects being the persons to determine when the work was completed, it was not so completed until they had signified their approval and therefore the lien was registered in time.

St. John, for plaintiffs. Heyd, K.C., for defendants.

Meredith, C.J.C.P., Britton, J., Magee, J.]

CHAMBERS v. JAFFRAY.

[June 13.

Discovery-Libel-Examination of defendant-Answers tending to criminate.

Upon the trial of an action for libel, s. 5 of the Ont. Witnesses and Evidence Act, as now enacted by 4 Edw. VII. c. 10, s. 21, would be applicable, and the defendant would not be excused from answering proper questions because the answers might tend to criminate him; and Con. Rule 439 (1250) puts a party on his examination for discovery in the same position as he would be in if he were being examined as a witness at the trial, and he is therefore not excused from answering any question that is properly put to him, upon the ground that the answer to it may tend to criminate him, and if he objects to answers on that ground his answer is within the protection of s. 5.

Regina v. Fox (1899) 18 P.R. 343 applied.

Order of Mulock, C.J. Ex. D., affirmed.

R. McKay, for Jaffray. J. B. Clarke, K.C., for plaintiff.

Meredith, C.J.C.P., Britton, J., Magee, J.]

LIFE PUBLISHING Co. v. ROSE PUBLISHING CO.

[June 14.

Copyright Drawings Publication in newspapers - British copyright "Book"Contract"Assign" Foreign

author-4 & 5 Vict. c. 45 (Imp.)—Infringement-Form of judgment Injunction-Delivery up of copies.

The plaintiffs claimed copyright in certain cartoon drawings and the accompanying titles and letter-press prepared for the plaintiffs by a celebrated artist, and first published simultaneously in the plaintiffs' newspaper in the United States and in another newspaper in England owned by one H., under agreements between H. and the plaintiffs, to which the artist was also a party. By the agreements H. was acknowledged to be the owner of the British copyright. H. granted a license to the artist to publish the drawings in book form in the United Kingdom. Entry was duly made at Stationers' Hall of H.'s ownership of the copyright of his newspaper. Subsequently this copyright was said to have been assigned by H. to H. & Sons, and before this action was brought H. & Sons registered eight copies

of the newspaper containing the eight drawings and letter-press in question, and assignments thereof to the plaintiffs. Before this registration the defendants had, without the consent of the plaintiffs or their predecessors, printed in Canada for the purpose of sale a quantity of pictorial post cards, on which were reproduced copies of the eight drawings, taken from books published by the artist under the license mentioned, but not registered at Stationers' Hall. The artist was not a British subject, and was not, at the time of the preparation or publication of the material in England, within any part of the British dominions. None of the material was protected by a Canadian copyright.

Held, 1. The effect of the agreements referred to was to vest in the plaintiffs the common law right to copyright in the drawings, and this right was validly transferred to H., who was an "assign" of the artist or author, within the meaning of section 3 of the Imperial Copyright Act, 4 & 5 Vict. c. 45; and the English newspaper was a book within the meaning of that section, and H. became entitled thereunder to statutory copyright in the drawings as part of his book, for when drawings form part of a book they come within the provisions of that Act, and are protected not only as part of the book, but as drawings. Maple v. Junior Army and Navy Stores (1882) 21 Ch. D. 369, and Bradbury v. Hotten (1872) L.R. 8 Ex. 1 followed.

2. The evidence sufficiently established the plaintiffs' title to the copyright by re-assignment.

3. The present Copyright Act protects the productions of foreign authors wheresoever resident, where there is a first or contemporaneous publication within the Empire. The plaintiffs, therefore, were entitled to an injunction, and to delivery up of the infringing copies.

Jefferys v. Boosey (1854) 4 H.L.C. 815, and Routledge v. Low (1868) L.R. 3 H.L. 100 discussed.

Judgment of Teetzel, J., affirmed.

H. Cassels, K.C., and R. S. Cassels, for the plaintiffs. J. H. Denton, for the defendants.

Teetzel, J.]

CARTRIGHT v. CARTRIGHT.

[June 22.

Life insurance-Attempt to change beneficiary-Necessity of consent thereto Trust-Application of existing law.

Under an insurance certificate for $3,000 issued by a society in 1883, the insured's wife was made the beneficiary. The cer