there being in nature no distinction between one species of wild animals and another, between the right of acquiring property in a hare or a squirrel, in a partridge or a butterfly: but the difference, at present made, arises merely from the positive municipal law. 5. To this principle of occupancy, also, must be referred the method of acquir ing a special personal property in corn growing on the ground, or other emblements, (7) by any possessor of the land who hath sown or planted it, [*404] whether he be owner of the inheritance, or of a less estate which emblements are distinct from the real estate in the land, and subject to many, though not all, the incidents attending personal chattels. They were devisable by testament before the statute of wills, (m) and at the death of the owner shall vest in his executor and not his heir; they are forfeitable by outlawry in a personal action; (n) and by the statute 11 Geo. II, c. 19, though not by the common law, (0) they may be distreined for rent arrere. The reason for admitting the acquisition of this special property, by tenants who have temporary interests, was formerly given; (p) and it was extended to tenants in fee, principally for the benefit of their creditors: and therefore, though the emblements are assets in the hands of the executor, are forfeitable upon outlawry, and distreinable for rent, they are not in other respects considered as personal chattels; and particularly they are not the object of larceny before they are severed from the ground. (q) 6. The doctrine of property arising from accession is also grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterwards an accession by natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils, the original owner of the thing was entitled, by his right of possession, to the property of it under such its state of improvement: (r) but if the thing itself, by such operation, was changed into a different species, as by making wine, oil, or bread out of another's grapes, olives, or wheat, it belonged to the new operator; who was only to make a satisfaction to the former proprietor for the materials which he had so converted. (s) (8) And these doctrines are implicitly [ *405] copied and adopted by our Bracton, (t) and have since been *confirmed by many resolutions of the courts. (u) It hath even been held, that if one takes away and clothes another's wife or son, and afterwards they return (m) Perk. 512. (p) Pages 122, 146. (8) Inst. 2, 1, 25, 34. (q) 3 Inst. 109. (n) Bro. Abr. tit, emblements, 21. 5 Rep. 116. (t) l. 2, c. 2 and 3. (7) [The right to emblements does not seem to be aptly referred to the principle of occupancy; for they are the continuation of an inchoate, and not the acquistion of an original right.] (8) [This also has long been the law of England; for it is laid down in the Year books, that whatever alteration of form any property has undergone, the owner may seize it in its new shape, if he can prove the identity of the original materials; as if leather be made into shoes, cloth into a coat, or if a tree be squared into timber, or silver melted or beat into a different figure. 5 Hen. VII, fo. 15; 12 Hen. VIII, fo. 10. See also 2 Campb. 576; 15 Ves. 442.] An intermixture of property by accident, or without the fault of parties, does not deprive either owner of his right; but if the intermixture be intentional, and with fraudulent purpose on the part of the party causing it, and it is impossible afterwards to distinguish what belonged to each, the innocent party shall have all. Hart v. Ten Eyck, 2 Johns. Ch. 62; Willard v. Rice, 11 Met. 493; Hesseltine v. Stockwell, 30 Me. 237; Jenkins v. Steanka, 19 Wis. 126. And in a well reasoned case in New York, it has been held, that where a willful trespasser takes corn and converts it into whisky, the property is not changed, and the owner of the corn may reclaim it. Silsbury v. McCoon, 3 N. Y. 379. See the valuable brief of Mr. Hill in this case. See also Snyder v. Vaux, 2 Rawle, 427; Riddle v. Driver, 12 Ala. 590. But where the admixture was not fraudulent, even though done purposely-for example, under a claim of right—the party causing it does not lose his right. Ryder v. Hathaway, 21 Pick. 298. Nor in any other case, if the property of each can be afterwards distinguished. Frost v. Willard, 9 Barb. 440. Nor would he, even when it could not be distinguished, if the property of each was of the same description, so that an equal quantity to what he before possessed, restored to each from the common mass, would place him substantially in statu quo. See Stephenson v. Little, 10 Mich. 433; Seymour v. Wyckoff, 10 N. Y. 213; Lupton v. White, 15 Ves. 442.] home, the garments shall cease to be his property who provided them, being annexed to the person of the child or woman. (w) 7. But in the case of confusion of goods, where those of two persons are so intermixed that the several portions can be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by consent, I apprehend that in both laws the proprietors have an interest in common, in proportion to their respective shares. (x) But if one willfully intermixes his money, corn, or hay, with that of another man, without his approbation or knowledge, or casts gold in like manner into another's melting pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost. (y) But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavoured to be rendered uncertain without his own consent. (z) 8. There is still another species of property, which (if it subsists by the common law) being grounded on labour and invention, is more properly reducible to the head of occupancy than any other; since the right of occupancy itself is supposed by Mr. Locke, (a) and many others, (b) to be founded on the personal labour of the occupant. (9) And this is the right which an author may be supposed to have in his own original literary compositions: so that no other person without his leave may publish or make profit of the copies. When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a *right to dispose of that identical work as he pleases, and any attempt to vary the disposition he has made of it appears to be [*406] an invasion of that right. Now the identity of a literary composition consists entirely in the sentiment and the language; the same conceptions, clothed in the same words, must necessarily be the same composition: and whatever method be taken of exhibiting that composition to the ear or the eye of another, by recital, by writing, or by printing, in any number of copies, or at any period of time, it is always the identical work of the author which is so exhibited; and no other man (it hath been thought) can have a right to exhibit it, especially for profit, without the author's consent. This consent may perhaps be tacitly given to all mankind, when an author suffers his work to be published by another hand, without any claim or reserve of right, and without stamping on it any marks of ownership; it being then a present to the public, like building a church or bridge, or laying out a new highway; but, in case the author sells a single book, or totally grants the copyright, it hath been supposed, in the one case, that the buyer hath no more right to multiply copies of that book for sale, than he hath to imitate for the like purpose the ticket which is bought for admission to an opera or a concert; and that, in the other, the whole property, with all its exclusive rights, is perpetually transferred to the grantee. On the other hand it is urged, that though the exclusive property of the manuscript, and all which it contains, undoubtedly belongs to the author, before it is printed or published; (w) Moor. 214. (x) Inst. 2. 1, 27, 28. 1 Vern, 217. (y) Inst. 2, 1, 28. (2) Poph. 33. 2 Bulstr. 325. 1 Hal. P. C. 513. 2 Vern. 516. (a) On Gov. part 2, ch. 5. (b) See page 8. (9) Mr. Sweet calls attention to the fact that the right to the exclusive use of distinctive trade marks, or of a particular partnership firm, for the purpose of enabling the public to know if it is dealing with or buying the manufactures of a particular person, is somewhat analogous to literary copyright, and though partially founded on the notion of protecting the public from fraud: 3 Myl. and Cr. 338; 8 Sim. 477; is an example of a right much more evidently arising out of occupancy. And he cites 3 Doug. 293; 3 B. and C. 541; 2 Ves. and B. 218; 2 Keen, 213; 3 Myl. and Cr. 1, 338; 5 Scott, N. S. 562. The court of chancery will restrain the violation of a trade mark: Motley v. Downman, 3 Myl. and Cr. 1; Millington v. Fox, ib. 333; Perry r. Truefelt, 6 Beav. 66; Frauks v. Weaver, 10 Beav. 297; Sexio v. Provezende, Law Rep. 1 Ch. Ap. 192; Barrows v. Knight, 6 R. I. 434; Devinger v. Plate, 29 Cal. 292; Kerr on Injunctions (by Herrick), 474, et seq. But not where the trade mark itself is an imposition, and designed for purposes of fraud. Clark v. Freeman, 10 Beav. 112; Stewart v. Smithson, 1 Hilt. 119; Kerr on Injunctions, 481. yet, from the instant of publication, the exclusive right of an author or his assigns to the sole communication of his ideas immediately vanishes and evaporates; as being a right of too subtile and unsubstantial a nature to become the subject of property at the common law, and only capable of being guarded by positive statutes and special provisions of the magistrate. The Roman law adjudged, that if one man wrote anything on the paper or parchment of another, the writing should belong to the owner of the blank materials: (c) meaning thereby the mechanical operation of writing, for which it directed the *scribe to receive a satisfaction; for in works of genius [*407] and invention, as in painting on another man's canvas, the same law (d) gave the canvas to the painter. As to any other property in the works of the understanding, the law is silent; though the sale of literary copies, for the purposes of recital or multiplication, is certainly as ancient as the times of Terence, (e) Martial, (f) and Statius. (g) Neither with us in England hath there been (till very lately) any final (h) determination upon the right of authors at the common law. (10) (c) Si in chartis membranisve tuis carmen vel historiam vel orationem Titius scripserit, hujus corporis non Titius sed tu dominus esse videris. Inst. 2, 1, 33. See page 404. (d) Ibid. § 34. (ƒ) Epigr. i. 67, iv. 72, xiii, 3, xiv, 194. (g) Juv. vii, 83. (e) Prol. in Eunuch. 20 (h) Since this was first written, it was determined, in the case of Miller v. Taylor, in B. R. Pasch. 9 Geo. III, 1769, that an exclusive and permanent copyright in authors subsisted by the common law. But afterwards, in the case of Donaldson v. Becket, before the house of lords, 22 Febr. 1774, it was held that no copyright now subsists in authors, after the expiration of the several terms created by the statute of Queen Anne. (10) [For the history of the law of copyright see Lowndes on Copyright, and Miller v. Taylor, 4 Burr. 2303. In that case it was decided that the authors had, by the common law, a perpetual copyright in their works, and that the statute of Anne, without interfering with this right, gave them additional remedies during a certain term. But this doctrine was overruled in the house of lords in Donaldsons v. Becket, 4 Burr. 2408; and it was held that the statute of Anne had entirely taken away the common law copyright. The statute 5 and 6 Vic. c. 45, now regulates copyright and limits its duration to the period of forty-two years from the first publication, or the period of the life of the author, and the seven years next following his death, whichever is the longest. The copyright of articles contributed to an encyclopedia, review, or other periodical work, is, in certain cases, to belong to the projector, publisher or proprietor of such work, subject to the right of any contributor under any contract, express or implied, to publish his own contributions separately. A copy of every book is directed to be delivered at the British Museum within a month of the time of publication, and, after demand, copies are to be delivered to the Stationers' Company for the use of the Bodleian, Cambridge, Advocates, and Trinity College, Dublin, libraries. The Universities of Cambridge and Oxford, and the Colleges of Eton, Westminster, and Winchester, enjoy a perpetual, unalienable copyright in such works as have been or may be given or bequeathed to them by the author or his representatives, such books not having been previously published or assigned. Statute 10 Geo. III, c. 53. The statute 1 and 2 Vic. c. 59, (the International Copyright Act) authorizes the queen, by order in council, to grant a copyright in any book published abroad, to the author and his representatives and assignees. As to the copyright in books composed and published abroad, independently of this act, see 2 Sim. 237; 5 id. 395; 10 id. 329; 1 You. and C. 288; 4 id. 485; 2 B. and Cr. 861; 9 Law J., N. S. Ch. 227. The copyright of an unprinted and unpublished work may subsist for any length of time in the proprietor for the time being of the original manuscript. Ambl. 694; 2 Eden, 329; 2 Meriv. 435; 4 Burr. 2330; 1 Chit. 26; 2 Ves. and B. 23. It seems that the receiver of a letter, though he may keep the original, has no right to publish copies, unless for the purpose of vindicating his character, &c. 2 Atk. 342; Ambl. 737; 2 Ves. and B. 19; 2 Swanst. 402. Upon the principle that no rights can originate in an act which is illegal or against public policy, it has been decided, with more of legal soundness than of good policy, that there is no copyright in a work which the court may consider to be detrimental to good morals or religion; so that assistance is refused even to the author himself wishing to suppress a work of this nature. 2 Meriv. 437; 2 Camp. 30; 5 B. and Cr. 173; Jac. 471.] As to copyright in dramatic pieces, see statute 3 and 4 William IV, c. 15; 1 Ad. and El. 580; 5 Scott, 242; 8 C. and P. 68, 78; in musical compositions, see statute 5 and 6 Vic. c. 45; in lectures, see statute 5 and 6 William IV, c. 65; in designs for sculpture and articles of manufacture, see statute 38 Geo. III, c. 71; 54 Geo. III, c. 56; 5 and 6 Vic. c. 100; 6 and 7 Vic. c. 65. A foreigner is entitled to the copyright of a work composed by him, which is first published in England. Boosey v. Davidson, 13 Q. B. 257; Boosey v. Jeffery, 6 Exch. 580; Low v. Routledge, Law Rep. 1 Ch. Ap. Cas. 42. But whatever inherent copyright might have been supposed to subsist by the common law, the statute 8 Ann. c. 19, (amended by statute 15 Geo. III, c. 53,) hath now declared that the author and his assigns shall have the sole liberty of printing and reprinting his works for the term of fourteen years, and no longer; (i) and hath also protected that property by additional penalties and forfeitures: directing farther, that if, at the end of that term, the author himself be living, the right shall then return to him for another term of the same duration; and a similar privilege is extended to the inventors of prints and engravings, for the term of eight-and-twenty years, by the statute 8 Geo. II, c. 13, and 7 Geo. III, c. 38, besides an action for damages, with double costs, by statute 17 Geo. III, c. 57. All which parliamentary protections appear to have been suggested by the exception in the statute of monopolies. 21 Jac. I, c. 3, which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by virtue whereof it is held, that a temporary property therein becomes vested in the king's patentee. (k) (11) (i) By statute 15 Geo. III, c. 53, some additional privileges in this respect are granted to the universities, and certain other learned societies. (k) 1 Vern. 62. On the general subject of copyright, see Williams Pers. Prop. 224; 2 Kent, 373; Curtis on Copyright, and the leading American case of Wheaton v. Peters, 8 Pet. 591. The act of congress of Feb. 4, 1831, (4 Stat. 436), secures to the authors of books, maps, charts, and musical compositions, and to the inventors and designors of prints, cuts and engravings, being citizens of the United States or residents therein, the exclusive right of printing, publishing and vending them for the term of twenty-eight years from the time of recording the title thereof, with a renewal of the right at the end of the term to themselves, if living, or to their widows and children, for a further term of fourteen years, on complying with the conditions of the act. The act of Feb. 5, 1859 (11 Stat. 380), extends the privilege of copyright to photographs and the negatives thereof, and makes some changes in the requisites to perfect the right. That the writer of a letter has such a property in it, as will enable him to enjoin its publication without his consent, see Woolsey v. Judd, 4 Duer, 379, and Brandreth v. Lance, 8 Paige, 24. (11) [When the crown, on behalf of the public, grants letters patent, the grantee thereby enters into a contract with the crown, in the benefit of which contract the public are participators; under certain restrictions, affording a reasonable recompense to the grantee, the use of his invention, improvement, and employment of capital, is communicated to the public. If any infringement of a patent be attempted, after there has been an undisputed enjoyment by the patentee under the grant for a considerable time, courts of equity will deem it a less inconvenience to issue an injunction until the right can be determined at law, then to refuse such preventive interference, merely because it is possible the grant of the crown may, upon investigation, prove to be invalid. Such a question is not to be considered as it affects the parties on the record alone; for, unless the injunction issues, any person might violate the patent, and the consequence would be, that the patentee must be ruined by litigation. Harmer v. Playne, 14 Ves. 132: Universities of Oxford and Cambridge v. Richardson, 6 id. 707; Williams v. Williams, 3 Meriv. 160. But, if the patent be a very recent one, and its validity is disputed, an injunction will not be granted before the patentee has established his legal right. Hill v. Thompson, 3 id. 624. The grant of a patent, as already stated, is in the nature of a purchase for the public, to whom the patentee is bound to communicate a free participation in the benefit of his invention, at the expiration of the time limited; Williams v. Williams, 3 Meriv. 160: if, therefore, the specification of a patent be not so clear as to enable all the world to use the invention, and all persons of reasonable skill in such matters to copy it, as soon as the term for which it has been granted is at an end, this is a fraud upon the public, and the patent cannot be sustained. Newbury v. James, 2 Meriv. 451; Ex Parte Fox, 1 Ves. and Bea. 67; Turner v. Winter, 1 T. R. 605; Harmer v. Playne, 11 East, 107. If a patentee seck, by his specification, more than he is strictly entitled to, his patent is thereby rendered ineffectual, even to the extent to which he would otherwise be entitled. Hill v. Thompson, 3 Meriv. 629; Harmer v. Playne, 14 Ves. 135. When a person has invented certain improvements upon an engine, or other subject, for which a patent has been granted, and those improvements cannot be used without the original engine; at the expiration of the patent for such original engine, a patent may be taken out for the improvements; but, before that time, there can be no right to make use of the substratum protected by the first patent. Ex Parte Fox, 1 Ves. and Bea. 67. And, where industry and ingenuity have been exerted in annexing to the subject of a patent, improvements of such a nature that their value gives an additional value to the old machine; though a patent may be obtained for such improvements; yet, if the public choose to use the original machine 601 VOL. I.-76 CHAPTER XXVII. OF TITLE BY PREROGATIVE AND FORFEITURE. A SECOND method of acquiring property in personal chattels is by the king's prerogative; whereby a right may accrue either to the crown itself, or to such as claim under the title of the crown, as by the king's grant, or by prescription, which supposes an ancient grant. Such, in the first place, are all tributes, taxes, and customs, whether constitutionally inherent in the crown, as flowers of the prerogative and branches of the census regalis or ancient royal revenue, or whether they be occasionally created by authority of parliament; of both which species of revenue we treated largely in the former book. In these the king acquires and the subject loses a property, the instant they become due; if paid, they are a chose in possession; if unpaid, a chose in action. Hither also may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his ancient prerogative, or by particular modern statutes: which revenues created by statute do always assimilate, or take the same nature, with the ancient revenues; and may therefore be looked upon as arising from a kind of artificial or secondary prerogative. And, in either case, the owner of the thing forfeited, and the person fined or amerced, lose and part with the property of the forfeiture, fine, or amercement, the instant the king or his grantee acquires it. *In these several methods of acquiring property by prerogative there [*409] is also this peculiar quality, that the king cannot have a joint property with any person in one entire chattel, or such a one as is not capable of division or separation; but where the titles of the king and a subject concur, the king shall have the whole: in like manner as the king cannot, either by grant or contract, become a joint-tenant of a chattel real with another person; (a) but by such grant or contract shall become entitled to the whole in severalty. Thus, if a horse be given to the king and a private person, the king shall have the sole property: if a bond be made to the king and a subject, the king shall have the whole penalty; the debt or duty being one single chattel; (b) and so, if two persons have the property of a horse between them, or have a joint debt owing without the improvements, they may do so without restriction, at the expiration of the original grant; if the public will abstain from the use of the first invention, in consideration of the superior advantages of the improved instrument, it is well; but the choice must be left open. Harmer v. Playne, 14 Ves. 134. The Patent Amendment Act, 15 and 16 Vic. c. 83, now regulates the terms upon which letters patent may be granted. By this statute the fees which it was formerly necessary to pay, upon obtaining a patent, have been greatly reduced, and the payment of them is spread over the space of several years; so that, if an invention be not found lucrative, the patent may be discontinued and the fees saved. Letters patent granted under this act contain a condition that the same shall be void at the end of three years, unless a fee of 401. with 107. stamp duty, be then paid; and again at the end of seven years from the grant, unless a fee of 801. and 201. stamp duty de paid. The statute 5 and 6 Wm. IV, c. 83, authorized a prolongation of the original term, not exceeding seven years, to be given on the recommendation of the judicial committee of the privy council; and by statute 7 and 8 Vic. c. 69, a further term, not exceeding fourteen years, may be granted, if it be shown that the inventor has not been renumerated during the former period for the expense and labor incurred in perfecting his invention.] Letters patent granted by the United States are now granted for seventeen years, and are not allowed to be afterwards extended. Act of Congress of March 2, 1861, 12 Stat. 246. Any citizen or any alien who has resided one year in the United States, and taken an oath of intention to become a citizen, may patent any new and original design or manufacture, either for three and a half, seven, or fourteen years, on payment of a fee of ten dollars for the first term, fifteen for the second, and thirty for the third period, and of this there may be an extension for seven years. The fees payable to obtain patents are, on filing the original application, fifteen dollars, and on issuing the patent twenty dollars. There is also a fee of ten dollars on filing a caveat. On the subject in general, see the elaborate treatise on patents by Curtis. |