384 EXCHEQUER COURT REPORTS. [VOL. V. 1897 THE AUER INCANDESCENT LIGHT Alai 2 2 MANUFACTURING CO MPA N Y PLAINTIFFS; (LIMITED) .... ....... AND HERMAN DRESCHEL AND MARY I VAIL MELICg DEFENDANTS. Infringement of patent—Actions taken in different courts—Dismissal of application for interim injunction—Nemo bis vexari debet pro unâ et eddem causa. Where the Judge of the Exchequer Court was asked to grant an interim injunction to restrain an infringement of a patent of invention, and it appeared that similar proceedings had been previously taken in a provincial court of concurrent jurisdiction, which had not been discontinued at the time of such application being made, this court refused the application upon the principle that a defendant ought not to be doubly vexed for one and the same cause of action. THIS was an application for an interim injunction to restrain an alleged infringement of a patent of invention. The plaintiffs had taken an action in the Superior Court of the Province of Quebec against the same defendants, in which, amongst other grounds of relief, they asked for an interim injunction similar to that asked for on the present application. It is not necessary foy the purposes of this application to set out the facts of the main case. The application came on for argument before the Judge of the Exchequer Court, at Montreal, on the 15th day of March, 1897. C. A. _Duclos, in support of the application : We contend that as the validity of the plaintiffs' patent had been determined recently in the Exchequer Court, and that the affidavits upon which the present application was based showed that the defendants in this case had been guilty of infringement, the court should have no
VOL. V.] EXCHEQUER COURT REPORTS. hesitation in granting the interim injunction asked for.. J. .E. Martin, contra, cites 55-56 Viet. c. 24, sec. 15 and 16 Viet. (Imp.) c. 83 ; and sec. 4787 of Revised , tatutes of the United States. C. B. Carter, Q C > . followed, contend plaintiffs, having taken proceedings in the Superior Court of the Province of Quebec in which they sought the same relief as that which they asked on this application, should have discontinued such proceedings before they came into this court seeking to obtain an injunction. Furthermore, he contended that there had been an unusual and unreasonable delay since the institution of the action in the Superior Court before they took any steps to obtain an injunction. An unreasonable delay to prosecute an infringer after having acquired information of the infringement will induce the court to refuse an interim injunction. (Cites Ency. Law, Vol. 18, pp. 81-82.) Mr. Duclos, in reply : The decree of the Superior Court will only extend to the Province of Quebec, whilst the process of the Exchequer Court will run all over the Dominion. An injunction of the Superior Court would not stop the defendant in Ontario. THE JUDGE OF THE EXCHEQUER COURT now (March 22nd, 1897) delivered judgment In this case, I think that the objection taken by Mr. Martin and Mr. Carter for the defendants, that there is an action pending in the Superior Court of the Province of Quebec against the same defendants, in which • the plaintiffs seek an injunction against the defendants on the same grounds as are now put forward, ought to prevail. It is true, of course, that the process bf court runs farther than a writ of the Superior Court, but I do not see that that makes any difference in the principles on which this application should be decided. 385 1897 1; TEE AUER The IrrCANDEs- CENT LIGHT COMPANY a i ~ n that the D R EB y C ' E LEL. Ax Timent orconnsel. Am. 4. Eng. this
386 EXCHEQUER COURT REPORTS. [VOL. V. 1897 I think the application should be dismissed, and THE ATIER with costs ; but the plaintiffs have liberty to renew INCANDES- CENT LIGHT the application if the action in the Superior Court of COMPANY the province is discontinued. The plaintiffs should, it DRES v C 's H e EL e . ms to me,elect either to pro secute the matter in the Reiman,. Superior Court or in this court. To allow both suits forent.. 3na;na to proceed at the same time would contravene the principle that a defendant ought not to be doubly vexed for one and the same cause of action. Judgment accordingly. Solicitors for plaintiffs: Atwater, Duclos d, Mackie. Solicitor for defendants : J. E. Martin.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.