[ BASKET v. CAMBRIDGE pectant on the determination of a particular estate, as if they had been in immediate possession from the year 1627. The UNIVERSITY. King is not restrained to any particular mode of granting, as bishops, &c. are. Show. Parl. C. The Case of The Master of the King's Bench Office. * 120 ] *3. Upon the head of usage, which is to be regarded as the exposition of time, and has so much weight, that the King himself is bound by it; 2 Roll. Abr. (Prerog.) E. 195; in common construction, by a grant of goods and chattels, choses in action shall not pass. But in a grant of bona et catalla felonum (as a liberty) debts due to the felon shall pass; because by such grants of liberties, choses in action have used to pass. How then has the usage stood in this case? Have the King's printers excluded all others? History will inform us to the contrary. Nay, statutes printed by others are now to be purchased. In 19 H. 7, Berthelet was the King's printer, but there are statutes of that date printed by Wynkyn de Werde and others. In 1553, the statutes are printed by Grafton, though Berthelet was then alive, and Grafton's patent did not take effect till Berthelet's death. So in latter times, the law patentees have exercised a concurrent right with the King's printer. In 1636, the statutes were printed by the assignees of Moor. In 1667 and 1670, by the assignees of Atkins, without naming the King's printer. Keble's edition has the assigns of Sayer, the law patentee, joined with the King's printer; and so has the late edition. As to law books; in 1605, John Legat printed for the University Dr. Cowel's Institutes; and the right was not disputed and had the University printed Rolle's Abridgment (p), as the Company of Stationers did, they would have shewn a very different title for so doing. But it is stated, that the University have all along printed the Acts of Uniformity; and though with the Prayer-book, yet the Act is the principal, and the Prayer-book only an accessory: and printing one act is the same to maintain a right, as printing the whole body of statutes. Besides, the argument is much stronger in favour of abridgments; which are works of a different species, requiring labour, judgment, and learning in the author: and therefore Mr. Comyns's reasoning is not applicable to them. As to the inconvenience the public may sustain by giving this power to the University, none such can arise by allowing two or three concurrent rights. An emulation will be excited, which will probably produce correcter, as well as cheaper editions. For se* 121 ] veral editions printed by the King's printer are *so incorrect, that the record has been frequently resorted to, to guard against is considerable doubt, whether it is not in very well be argued, that they remain still vested in the King; and the grants are nothing more than authorities to exercise the right of multiplying those copies, which, if not granted, remain vested in the King, exercising them according to the public necessity, charging reasonably;" 6 Ves. Junr. 712. (p) Carter, 89. the infidelity of the copy. The public then will be advantaged by it, and a dangerous monopoly overthrown, which construction is the most consistent with law and reason. Mr. Comyns, in reply, observed, inter alia, That the King's printer might be restrained from setting exorbitant prices on his books, by stat. 25 Hen. 8, c. 15, and another of Queen Anne, but that the Universities were therein excepted, and therefore under no restraint. 17th November, 1758, On the argument, Lord Mansfield, C. J., observed, that, whether the Crown, in fact, meant to assume a power over the art of printing in general, when these patents were granted, or whether only over copy-rights, it is clear, they can only operate in point of law as to the copyrights of the Crown; for the construction of law is, that the Crown intended only to do that, which by law it is entitled to do. It is admitted, that, by the words omnes et omnimodos libros, the University may print Bibles, &c. The whole distinction then is, between those and acts of Parliament, or, in other words, whether acts of Parliament are books? (q).-Great pains have been taken, and the subject exhausted. The Court is well satisfied in opinion, and will certify into Chancery this Term. 66 66 Copy of the Certificate. Having heard counsel on both sides, and considered of "this case, we are of opinion, that, during the term granted "by the letters patent, dated the 13th October in the 12th year of the reign of Queen Anne, the plaintiffs are entitled "to the right of printing acts of Parliament, and abridgments "of acts of Parliament, exclusive of all other persons, not au"thorized to print the same by prior grants from the Crown. BASKET V. CAMBRIDGE UNIVERSITY. "But we think, that, by virtue of the letters patent, bearing "date the 20th day of July, in the 26th year of the reign of King Henry the 8th, and the letters patent, bearing date "the 6th of February, in the 3d year of the reign of King [ 122 ] "Charles the 1st, the Chancellor, Masters, and Scholars of the University of Cambridge, are INTRUSTED with a concurrent authority, to print acts of Parliament and abridgments of "acts of Parliament, within the said University, upon the terms "in the said letters patent (r). "24th November, 1758. (q) The etymology and meaning of the word Book, and what may be considered a book within the meaning of the Copyright Act, 8 Ann. c. 19, s. 1, is ingeniously discussed in Hime v. Dale, 2 Camp. 27, n. (b), 11 East, 244, n. (a). A musical composition on a single sheet is privileged as a book; Clementi v. Golding, 2 Camp. 25, 11 East, 244. "MANSFIELD. (r) The right of printing in the Universities, and by the King's printer, underwent considerable discussion in a case, where the two Universities had obtained an injunction against certain booksellers, to restrain them from importing and publishing in England, Bibles, &c. printed in Scotland by the King's printer there. The King's printer in England, having refused BASKET v. CAMBRIDGE UNIVERSITY. N. B.—In a letter from Mr. Justice Foster to W. B. at Oxford, dated December 11, 1758, and enclosing the foregoing certificate, he expresses himself in these terms: "I thought it would be agreeable to you, to know the issue "of the cause, between the King's printers and the University "of Cambridge, as far as concerns the proceeding in our Court: " and have therefore enclosed our opinion. What hath been "done in the Court of Chancery upon our certificate, I have "not heard. The words underlined were thrown in, by way "of an intimation to the University, that we consider the powers given by the letters patent, as a trust reposed in that learned body, for public benefit, for the advancement of literature, "and not to be transferred upon lucrative views to other hands. "I hope both the Universities will always consider the Royal grants in that light." 66 The plaintiff's bill was (I apprehend) dismissed in Chancery, and the injunction, restraining the sale of the book in question, was dissolved. to join in the bill, was made a defendant. printer, subsequent to that to the University, could have had no effect: but it was held a grant of part of that interest, which had been granted by the prior grant, and which would take effect when the prior grants ceased to have effect; that it has become split; this grant being only to print in the Universities, and sell everywhere in England: the other to print everywhere: they are consistent in this sense. The two patents amount to an apportionment into different proportions of the authority, carrying along with it the duty, and therefore in some degree the right to exclude. Mr. Yorke so considers it, and puts it strongly, as a concurrent right to print, and then it must be to exclude;" Universities v. Richardson, 6 Ves. Junr. 689, 712; see also Grierson v. Eyre, 9 Ves. Junr. 341, post, 371, n. and Anon. 1 Vern. 120. It has been determined, that a copy of every book, composed since 8 Ann. and published for the first time, shall be delivered to the Stationers' Company, for the use of the Cambridge University library, though such book has not been registered with the Stationers' Company, under the provisions of that act; Cambridge University v. Bryer, 16 East, 317; See 54 G. 3, c. 156, s. 2. HILARY TERM,-32 GEO. II. 24 JAN. 1759.-CHAN. Present BURGESS v. WHEATE. S. C. 1 Eden, 177 (a). Lord Keeper, HENLEY; Chief Justice of the King's MASTER OF THE ROLLS. escheat. In the THE matters in question between the parties come before the A trust estate Court in two several causes: one is set down for further direc- is not liable to tions, in consequence of a reservation in a decree of the late case of lands Lord Chancellor, referring a case and several questions to the held by descent Judges of the Court of King's Bench, for their opinion. They from the paterhave certified their opinion to the Lord Keeper, and he seems where the cestui inclined to confirm that certificate: and that cause is now set que trust dies down for further directions. on an informa They come before the Court in another cause, tion filed by the Attorney-General, on behalf of the Crown. The Attorney was a defendant in the original cause; so that the information here is in the nature of a cross bill. nal ancestor, without heirs ex parte paterná, the trustee shall retain them for his own be nefit, as well against the heir the lord claim Five hundred The case on which the matters arise is this:-Lawrence ex parte materBathurst was seised in fee of the manor of Lechlade, &c. in na, as against com. Glouc. and he having a mind to raise a sum of money out ing by escheat. of part of the estate, by deed, 25th March, 22 Car. 2, creates 25 March, a term of one thousand years, and vests it in trustees, in trust 22 Car. 2. for himself and his heirs, executors, and administrators. Law- [ *124 ] rence Bathurst, in his life-time, as he had created a term to One thousand raise money, made a mortgage, for five hundred years, of that years' term. part of the premisses, for securing the payment of 800%. and years' mortgage 400%., and that mortgage, by several mesne assignments, be- term, vested in came vested in John Chandler. Soon after this he died, leav- Chandler. ing issue Sir Edward Bathurst, his only son and heir, and two daughters, Ann and Mary; and the premisses descended to his son, subject to the mortgage as to part. The widow of Law- Assignment of rence Bathurst (Q. how entitled?) (b), after his death, borrowed the residue of a sum of money, and assigned over, as a security, the residue of the one thousand years' term. Sir Edward Bathurst died an infant; in consequence of which, the estate descended to Ann and Mary Bathurst, his sisters and co-heirs. Ann intermarried with John Greening, and Mary with John Coxeter; and there (a) In which report, the judgments of the Master of the Rolls and Lord Mansfield are precisely the same as those given here: but there is a considerable difference in the judgment of the Lord Keeper, which is given there more at large, but is in sub stance the same. (b) By his will he made his widow Susannah his sole executrix, who thereby became entitled to the residue of the term of 1000 years. one thousand years' term. Descent in coparcenary to Ann and Mary. BURGESS v. WHEATE. Settlement of Anne's moiety, 21 Aug. 1686. M. 1689, bill of partition. Allotment. [ upon the husbands and wives (in right of the wives) became entitled to this estate, in undivided moieties. Greening and his wife made a settlement of their moiety, 21 August, 1686, and covenanted to levy a fine to the use of such &c. as the husband and wife should jointly persons, appoint, by any deed or will duly attested; and for want of such appointment, to themselves for their lives, and the life of the survivor; remainder to the heirs of their bodies; remainder to the right heirs of the survivor. Mich. 1689; Coxeter and his wife filed a bill of partition of the estate; and the usual directions were given on the decree, and also that the incumbrances should be discharged in equal moieties. Afterwards an allotment was made by commission; and Greening and his wife, being dissatisfied with their allotment, applied to the Court for a new commission; but the other *125] sister, agreeing to give up her allotment, and to make an *exchange with her sister, that was accordingly accepted; and the allotments were exchanged, and conveyances executed. Exchange. Ann died. Husband en titled, and died. Descent to Eliza beth Greening, wife of Nic. Harding. Marriage settle ment. Bill to perfect the partition. cordingly. Mary releases her moiety of equity of re March 1693; Ann Greening died, not having joined with her husband in any appointment. In consequence of which, the husband, by the settlement of 1686, became entitled to the inheritance of her moiety. And in December, 1694, he died sans issue, and the moiety descended to Elizabeth Greening, his niece and heir, ex parte paterná, being the only child of Thomas Greening, his eldest brother. She afterwards married with Nicholas Harding, but previous to that marriage, a settlement (c) was made, on 15th and 16th August, 1695, of this moiety to the use of the husband for life; then the wife for life; remainder to trustees to preserve contingent remainders; remainder to trustees for ninety-nine years, on a trust that never arose; remainder to their first and other sons in tail male successively; remainder to trustees for five hundred years, on trusts that never arose; remainder to the right heirs of Elizabeth Greening. Michaelmas 1695; Harding and his wife brought a bill to perfect the partition, and to divide other lands, omitted in the former partition. A decree was accordingly made for mutual Conveyances ac- conveyances; and a commission issued, to divide the rest of the premisses. And in January, 1698, conveyances were mutually executed. Coxeter died, and his wife survived him; and released her interest, in a moiety of the equity of redemption of demption to the the premisses mortgaged, to the mortgagee or some person in trust for him. Harding and his wife do not release their right in the mortgaged premisses, but agree to convey their moiety in the same way, 22 February, 1713. And the mortgagee agrees, that, in consideration of 5007. paid per Harding, he or agrees to convey his trustee shall convey to Harding, his heirs, executors, and administrators, as he should appoint, the mill and closes, with mortgagee. Harding et ux. agree to do the same. Mortgagee part to Harding. (c) This must have been made by fine, though no fine is stated: therefore it must be implied, that there was a fine; and what follows shews it. |