assign it. It were absurd, if the merchant's opinion should prevail, that this is now converted into a personal authority. If it be such, and the indorsee dies, it could not go to his executors and administrators; in whom most clearly the property of the bill does vest. Upon this ground, that the point is settled both by King's Bench and Common Pleas, and well settled, I think there should be a new trial. Otherwise also, I should be of the same opinion. Certainly, the suggestion of surprise is not in all cases a reason for a new trial; but in particular cases, such as the present, it may be (u).—The question of costs is very peculiar. There is a verdict in part for the plaintiff, which already carries costs for him. But, for form's sake, we must set aside the whole verdict, which is usually done on payment of costs. But this will be giving defendants costs, which they could not otherwise have, merely because they have obtained an improper verdict. Therefore, I think, that under *these particular circumstances, the verdict should be set aside without costs. DENNISON, J.-I am of the same opinion. If the words to A. B. only were inserted, I should think it would not be restrictive: at least it should be left to a jury. In Rawlinson and Stone, M. 20 Geo. 2 (w), an inland bill of exchange was drawn payable to A. or order, who indorsed it to B., without adding any thing more. The question was, Whether there was such an interest in the executor of the assignee, as that he might assign it. The Court held, upon enquiry from merchants, that it might be indorsed thus: " C., executor or ad"ministrator of B." When a man says, Pay to A.," the law says, it is "to A. or order." He then says, I intend it should not be so. What signifies what you intend? The law intends otherwise. Same opinion as to costs. FOSTER, J.-I am of the same opinion. This is now the settled law, and ought not to have been left to a jury. People talk of the custom of merchants. This word custom is apt to mislead our ideas. The custom of merchants, so far as the Custom of merlaw regards it, is the custom of England; and therefore Lord chants is the geCoke calls it, very properly, the law-merchant. We should law; not any not confound general customs with special local customs. I special local custhink there should be no costs. WILMOT, J.-There are two questions. Whether the law is fully settled, and upon what principles? It is certainly now settled, and upon these principles: The original contract between the drawer and payee, is, to pay to the payee and his assigns, and the assigns of such assigns, in infinitum. There is the same privity between the drawer and the last assignee, as the first. The first assigns over that chose in action, which, in its nature, and by the express permission of law, is assignable, with the same privileges and advantages, that it had when he received it. It might be a considerable question, whether a (u) Gist v. Mason, 1 T. R. 84; Vernon v. Hankey, 2 T. R. 113; Spong v. Hog, post, 802. (w) Barnes, 164, Willes, 559, in C. P.: confirmed on error in K. B. 3 Wils. 1; 2 Stra. 1260, S. C. by the name of Robinson. neral established tom. EDIE EAST INDIA C. [ *300 man can limit and modify the property or not, even by express words of restriction, so as to check its currency. By giving a bare authority, he may do it; as, "Pay to A., for my use;" But if he indorses it generally, I should have a great doubt; ] *supposing it purchased by a subsequent indorsee, for a valuable consideration (x). In the present case, I think assigning it to A. carries the property, with all its qualities. It implies a consideration to have been given. I have a note of Acheson and Fountain. Mr. Wearg then cited a case so determined in Common Pleas, probably that of Moore and Manning. Another case shews the liberality with which indorsements have been construed: Carth. 403 (y). The question was, whether indorsement to the order of A. will enable A. to maintain an action. Determined, that it will. If so, a fortiori, an indorsement to A. will enable him to indorse it. Custom of merchants is the general universal law. Facts must be reiterated to make Opinion of mer such a custom. The opinion of merchants is nothing. Special custom of merchants has been controlled in a case, where an indorsor had divided a note, and indorsed it to several persons: Carth. 466, Salk. (2) Held, that the indorsor cannot vary the original contract, and split one note into twenty. Determined to be a void custom, though allowed to be the custom of merchants. Same opinion as to costs. chants is not the custom of merchants. New trial was granted without payment of costs. (a) As to indorsements, which restrict the negotiability, see Snee v. Prescot, 1 Atk. 249; Ancher v. Bank of England, 2 Doug. 637; Potts v. Reed, 6 Esp. 57. As long as the first indorsement continues blank, a bill or note, as against the payee, drawer, and acceptor, is assignable by mere delivery, notwithstanding it may have upon it subsequent full indorsements; Smith v. Clarke, Peake N. P. C. 295.-See Bayley on Bills, 48 (ed. 1813.) (y) Fisher v. Pomfret. (2) P. 65, Hawkins v. Cardy, 1 Lord Raym. 360, 12 Mod. 213, S. C. "Where the drawer of a bill has paid part, you may indorse it over for the residue; otherwise not, because it would subject him to variety of actions;" per Gould, J., in Johnson v. Kennion, 2 Wils. 262; Bacon v. Searles, 1 H. Bla. 88. See also Pierson v. Dunlop, 2 Cowp. 571; Walwyn v. St. Quintin, 1 Bos. & P. 652; and Bayley on Bills, 51, 155 (ed. 1813). proper remedy to restore a cu rate to his chapel. Mandamus the NORTON moved for a mandamus to the trustees of a meeting-house at Plymouth, to admit a teacher, one Mence; on a suggestion by affidavit, that he was elected under the deed of trust by the congregation, and refused admission; and cited K. and Blower (a), a late case in King's Bench, where a mandamus was granted, to restore a curate to a chapel in Staffordshire, who was nominated by the vicar and ousted: which mandamus is now at issue. Per Cur.-We have considered of that case since, and are all clear, that this is the proper specific remedy, where a (a) 2 Burr. 1043: The chapel was a donative, endowed with lands: S. C. cited 1 T. R. 399. curate is ousted from a chapel to which he has a right. In such cases, a clergyman is not to be driven to his ejectment. Rule to shew cause.-[S. C. post, 352.] THE KING ຫ. BARKER. TONSON v. COLLINS. [ 301 copy-right sub sists in authors, ACTION on the case, for selling certain books called the Qu. Whether Spectators, printed without any licence or consent from the sole and true proprietors of the copy thereof, viz. the plaintiffs, as a valuable to their injury and damage. On not guilty pleaded, the jury found a special verdict to the following effect. "That the Spectator is an original composition, by natural "born subjects resident in England, viz. Mr. Addison, Sir R. "Steele, &c. first published A. D. 1711. That Jacob Tonson "deceased, in 1712 purchased of the authors for a valuable "consideration, the said work, to him and his assigns for "ever. That the plaintiff's Jacob and Richard are his personal "representatives and assigns. That old Jacob in his lifetime, " and the plaintiffs since his death, have constantly printed and "sold the said work as their property; and now have and always have had a sufficient number of books of the said work, "exposed to sale at a reasonable price. That before the reign "of Queen Anne, it was usual to purchase from authors the 66 66 66 perpetual copy-right of their books, and to assign the same "for valuable consideration, and to settle them in family set"tlements, for the provision of wives and children. That, "to secure the enjoyment of said copy-right, the Stationers' Company have made several bye-laws; particularly one dated "17 August, 1681, and another, dated 14 May, 1694 (therein "set forth), reciting and recognizing, in the strongest terms, "the copy-right of authors and their assigns, and prohibiting any infraction of such right by members of their Company, "under certain pecuniary penalties. That the said Jacob "Tonson, deceased, complied with the conditions required by "the said Company, to ascertain his right, by registring the "said work as soon as he had purchased the copy. That the "defendant, without licence of the plaintiffs, and knowing "the said copy to have been purchased by said Jacob Tonson "deceased, printed, published, and sold several copies of the "same in April and May, 1759, whereby the plaintiffs were property, inde pendent of the stat. 8 Ann. "*damnified; but whether the defendant is liable in law to [ *302 ] answer the damages, they are ignorant. But if the Court "shall adjudge him liable, they find him guilty, damages 57.; "if otherwise, not guilty." Wedderburn, for the plaintiff.-The general question will turn on the right of the plaintiffs. For sufficient acts of the defendant are found, of infringing that right, if existing: which right, if any, must be a right of property at common law; for this case is quite out of the statute of Queen Anne (a). The (a) An author has a property in an un- tute; Southey v. Sherwood, 2 Meriv. 435; published work, independent of the sta- Macklin v. Richardson, Ambl. 694. right of authors in general is now to be determined; not of any particular bookseller. From the industry of the author, a profit must arise to somebody: I contend it belongs to the author; and when I speak of the right of property, I mean in the profits of his book, not in the sentiments, style, &c. I shall endeavour to shew,-I. That this right is as well founded as any other right of property: II. That it is also recognized by the laws of England.-I. Property, according to Selden, Mar. Claus. is jus utendi, fruendi, alienandi, &c. Different originals are assigned of the right of property. All agree, that its final cause is to promote the industry of individuals. Property at first continued only as long as possession; then, was extended for life; then, was transmissible to representatives; lastly, was refined into the multiplicity of rights we now experience. According to Grotius, invention is one ground of property, occupancy another. The present ground is invention. While a work is in manuscript, the author has entire dominion over it. Courts have interposed, to stop its publication by other men. Webb and Rose (b); Forester (c) and Walker (d); late Case of Lord Clarendon's Manuscripts in Chancery (e). If, instead of copying by clerks, an author prints for the use of his friends, he gives them no right over the copies. Pro] *ceed one step farther: If he publishes by subscription, and no books are delivered but to subscribers; they have no right over the copies, but only to use them. This leads us to a general publication: There also every purchaser has a right to use, but nothing farther. The profits of the sale must go to somebody. The printer and other mechanic artists concerned in the impression are paid for their parts; the author who is the first mover ought in justice to be paid too. This doctrine is also consistent with public utility. Learning would be prejudiced, if authors may be stripped of this independent provision for themselves. It may be objected, 1st. That this right is incapable of possession.-Not more than advowsons and other incorporeal rights are. 2dly. It is impossible to be guarded. -Laws are the guard of property in society, not bolts and bars. This very action is a proof that it may be guarded. II. This right is recognized by the laws of England. Manuscripts are quite out of the case. They could produce no profit. Therefore I shall begin from the introduction (f) of printing by Caxton in 1471, (for Dr. Middleton has confuted the story of its prior importation at the King's expence), and herein shall rely principally on Ames's Typographical Antiquities. Caxton's books were all printed at the expence of private persons. Pynson's and De Werde's, the same. There were then no profits, or but little, arising from the impression. About 1500, the encouragement arising from sale began to be suffi * TONSON บ. COLLINS. cient, without patronage. Since 1506, no books have been printed at the private expence of patrons. But now they began to be printed cum privilegio ad imprimendum solum. These privileges do not contradict the idea of a prior right of property; they only support and protect it. Henry 8th's book on the Sacraments was printed 1521, cum privilegio. This he gave the printers, in his private right as author. Another ancient book, called the Customs of London, having no certain author, has therefore no privilege. About this time the Crown began to [ *304 ] exert its prerogative copy-right (g); which shews, that a copyright may exist. There was no King's printer by patent, till the reign of Edw. 6. He granted one to Grafton, with some exceptions, as of grammars; which were then the property of Barthelet, printer to Hen 8, being books composed at the King's expence. In Rym. XV, 150, there is a patent for printing Greek and Hebrew. This arose from the great expence of purchasing manuscripts. There could be no copy-right in classic books; therefore, the King seised them, as bona nullius and things derelict. These patents are most of them for Bibles, &c. which are things gained at the expence of the Crown, and therefore they are the subject of copy-right;--or for almanacks, &c. which are things derelict (h). One patent indeed goes out of this rule; that for printing law books. I cannot account for the principle upon which that is founded. Next came the power of licensing, which arose from the religious disputes then prevalent. This made printing be looked upon all over Europe as a matter of state, and proper to be regulated by law. In 1537, Hen. 8. published a proclamation against printing without licence. Fox, 572. In 1555, another, ordering the possessors of heretical books to burn them; else, to be accounted rebels, and executed by military law. The same King erected the Company of Stationers, professedly to regulate the press. His charter was confirmed by Queen Elizabeth in 1558. În 1556, a decree of the Star Chamber regulated the manner of printing, and number of presses. Ames, 534. In 1583, two printers, Wolf and Ward, insisted upon a right of printing all books, even where there were copy-rights existing; Stowe, 223, tit. Stationers' Company. But commissioners appointed by the Crown willed them to desist. In 1585, another decree of the Star Chamber, that no man should print books, whereof the property was in others, according to the allowed ordinances of the Stationers' Company. In 1583, several printers surrendered certain copy-rights, to the use of the poor of the Company of Stationers; reserving a power of printing them at the lowest rates; Ames, 551. This shews, that the profits of publica- [ *305 ] tion were then usually assigned. Tottel had several copyrights. This severity of the Star Chamber had no good end. Another decree of the Star Chamber was made in 1637, modelled on that of Qu. Eliz. During the ensuing usurpation, VOL. I. (g) See Sol. Gen. Yorke's argument, ante, 112, and notes. R |