*181

*

Choses in Action, Assignment of-Copyright.

*recovery of damages may also arise, independently of contract express or implied (a), from a wrong or injury done by a person, or by those for whom he is answerable (b); but rights of action arising from personal wrongs have their own peculiar rules, and can scarcely be included under the denomination of personal property, and accordingly they are not included in Sir W. Blackstone's enumeration (c). It has been already observed that, in order to discourage strifes and contentions, by the common law a chose in action could not be assigned (d), though this nicety is now disregarded as regards such choses in action as are ranked as personal estate, though, in deference to the ancient principle, the assignment is treated as an appointment of the assignee as the person to sue, and the action is brought in the name of the assignor (e).

There is one description of personal property known by the name of Copyright-that is, the right which an author and inventor has in his own original literary compositions and works-which demands particular notice, as it is so frequently the subject of the interference of the Court of Chancery by way of injunction. Whatever inherent right might be supposed to subsist in authors by the common law (f), the statute 8 Anne, c. 19, amended by the statute 15 Geo. III. c. 53, and 41 Geo. III. c. 107, secured to the author and his assigns the sole liberty of printing and reprinting his works for fourteen years, and no longer unless he were living at the end of that time, and then he had a further term of fourteen

years (g). A similar privilege was extended to the inventors of [*182] prints and engravings for the term of twenty-eight years, and for the life of the author if he should be then living; and an action for damages in case of infringement was given, with double costs (h). By the Acts 38 Geo. III. c. 71, and 54 Geo. III. c. 56, sculpture also was protected.

By the statute 5 & 6 Vict. c. 45, the statutes of the 8 Anne, c. 19, 41 Geo. III. c. 107, and 54 Geo. III. c. 156, are repealed, and it is enacted that the copyright of any book or part of a book, or sheet of music, map, chart, or plan which shall be published in the lifetime of its author, shall

afterwards became the office of a Jury, but
in the corresponding texts of the Roman
law it was the office of the Judex; hence
the language of this passage of Bracton.
(a) 3 Bla. Comm. 117.

(b) Ex maleficio vel quasi, Just. Inst. iii. 14. 2; or, ex delicto vel quasi ex delicto, iv. tit. 1, and tit. 5, and tit. 6. 15, which is quoted by Sir W. Blackstone; and see Bracton, 99 a.

(c) 2 Bla. Comm. 397. Actions for torts will be noticed in a future page. Surely there can be no doubt as to the source from which these distinctions and rules (however founded on principles which must, in some shape or other, prevail in every civilized society) were immediately derived; though Sir William Blackstone, in noticing the similar doctrines of the Roman law, on this as on all other occasions, like most of our legal writers and historians, seems anxious to exclude the notion of adoption:-"The

same idea, and the same denomination of
property," he says, "prevailed in the civil
law," ibid. note (h) et v. ib. p. 443.

(d) Co. Litt. 214; 2 Bla. Comm. 442.
(e) 2 Bla. Comm. 442.

() As to which see 2 Bla. Comm. 406, 407, and the notes. Boswell, in his Life of Johnson, ii. p. 42 (ed. Malone), states that it was the opinion of Dr. Johnson, confirmed by the House of Lords (referring, no doubt, to Donaldson v. Becket, 4 Burr. 2408), that there was no such right at common law. The judgments in that case, particularly of Mr. Justice Aston, are very important for the consideration of those who may desire to inquire into what the doctrine of the common law was.

(g) By stat. 15 Geo. III. c. 53, some additional privileges are given to the universities and certain other learned societies.

(h) 8 Geo. II. c. 13; 7 Geo. III. c. 38; 17 Geo. III. c. 57; 2 Bla. Comm. i. p. 407.

Statutes relating to Copyright.

182

endure for his life and for seven years longer; if the seven years shall expire before the end of forty-two years from the first publication, the copyright is to endure for such period of forty-two years; when the work is posthumous, the copyright is to endure for forty-two years from the first publication, and to be the property of the proprietor of the author's manuscript and his assigns (a). In cases of subsisting copyright at the time of passing of the Act, the term is to be extended, except when it belongs to an assignee for other consideration than that of natural love and affection-in other words, to a stranger by gift or sale-in which case it is to cease at the end of the present term which should be subsisting therein at the passing of the Act, unless its extension shall be agreed to between the proprietor and the author (b). By the stat. 5 & 6 Vict. c. 45 (c), the provisions of the stat. 3 Will. IV. c. 15, in favor of the author of dramatic pieces, are extended to the authors of musical compositions, and the sole liberty of representing or performing such dramatic pieces or compositions is secured to the authors for the term provided in the Act of the 5 & 6 Vict., for the duration of copyright in books (d), and express remedies by action are given in case of infringement (e). The copyright of articles contributed to a periodical work is also secured in certain cases 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 (ƒ).

By the stat. 5 & 6 Will. IV. c. 65, lectures, under certain regulations, are protected from being published without the consent of the authors. By virtue of the stat. 5 & 6 Vict. c. 100, amended by stat. 6 & 7 *Vict. c. 65, and the previous statutes stated in the Schedules A. [*183] and B. to the first-mentioned Act, the provisions of which are consolidated in the two first-mentioned Acts, protection is given to the copyright of designs and patterns for ornamental articles of manufactures of various kinds (g). By the Act of the 5 & 6 Vict. c. 45, a public register of the proprietorship of copyrights in printed works, and in manuscript dramatic and musical pieces, is directed to be kept at Stationers' Hall: a stamped or certified copy of any entry in such register is made primâ facie evidence of title. It is not essential to the proprietor's title to have such entry made, but no person can sue upon any infringement of his copyright unless he shall have previously entered the work in such a register; a prescribed form is given for the entry of assignments of copyright in such register (h). The statute 7 & 8 Vict. c. 12 (which repeals the 1 & 2 Vict. c. 59, the previous international copyright Act), authorizes the Queen by order in Council to grant

(a) § 3.

(6) § 4.

(c) 20 and 21. (d) § 20.

(e) See § 15. 21. 23, and 24. 26.

(f) Ib. § 18. The infringement of copyright by the importation of copies printed abroad is provided against by the stat. 5 & 6 Vict. c. 47.

(g) See particularly § 3, 5 & 6 Vict. c. 100; and 2 of the 6 & 7 Vict. c. 65. The 38 Geo. III. c. 71, and 54 Geo. III. c. 56, apply to models and busts, which are ex

cepted from the provisions of the two firstmentioned Acts.

(h) § 11, 12, 13, 14. 24. For a more complete account of these statutes down to 1843, I would refer to the editions of Blackstone's Commentaries by Mr. Stewart, and by Mr. Sweet; the latter editor has given (vol. ii. p. 407, notes 11 and 12) a summary of the principal decisions at law and in equity. I shall have occasion to examine into the doctrines of the Court of Chancery on this subject hereafter.

183

Patent Rights-Specification-Joint Tenancy, &c.

copyright in any book, prints, articles of sculpture, and other works of art, to be defined in such order, which shall, after a future time, to be specified in such order, be first published in any foreign country, to the authors, inventors, designers, and makers thereof respectively, their executors, administrators, and assigns, for any term not exceeding the term of copyright which authors, &c., in England may be entitled to under any Acts theretofore passed, or thereafter to be passed, under certain regulations which are specified in the Act of the 7th & 8th of Vict. There is a kind of prerogative copyright vested in the crown in regard to the printing of Acts of Parliament, proclamations, orders in Council, liturgies and books of divine service, the Bible, and such law books, grammars, and other compositions as were complied or translated at the expense of the crown (a). By the exception in the Statute of Monopolies (b), 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, a species of property analogous to that of copyright may be created under royal letters patent for any invention for a term of fourteen years. The letters patent always *contain, [*184] amongst other conditions, two important provisos,—namely, that

the letters patent shall be void if the invention be not new as to the public use thereof within England or the limits within which the privilege is granted, or shall not have been invented by the patentee, unless where the patentee rests his title on a communication from a foreign country; and unless the patentee shall, by an instrument in writing called a specification, describe and ascertain the nature of his invention, and in what manner it is to be performed, and shall cause the same to be enrolled in the Court of Chancery (c).

Things personal as well as real may belong to their owners, not only in severalty, but also in joint tenancy and in common. Unless a joint tenancy be severed the same doctrine of survivorship takes place as in estates in lands and tenements; so if the jointure be severed, as by either of the owners selling his share, the vendee and the remaining part owner are tenants in common. However, for the encouragement of husbandry and trade, it is held that stock on a farm, though occupied jointly, and also a stock used in a joint undertaking by way of partnership in trade, shall always be considered as common and not as joint property, and that there shall be no survivorship; so that the share of each goes to his personal representatives (d).

(a) 2 Bla. Comm. 410; 3 Bli. Rep. N. S. for a general view of the state of law on 391, Sweet.

(b) 21 Ja. I. c. 3.

(c) By the stat. 5 & 6 Will. IV. c. 83, amended by 2 & 3 Vict. c. 67, various regulations have been introduced in favor of patentees, particularly authorizing the Privy Council to grant an extension of the patentee's time for a further period. This Act has been amended, and the powers of the Privy Council on this and other subjects has been extended by the Act 7 & 8 Vict. c. 69, 1844. I may refer the student

the subject of patents down to 1843, to Mr. Sweet's note (13), 2 Bla. Comm. 407; and the practitioner, for a full summary of the decisions at law on the subject of patents, to the second vol. of Mr. Harrison's ample Digest, p. 4074, et seq.

(d) 2 Bla. Comm. 399; but the right to recover choses in action at law does survive, Chitty's note, ib. It is not easy to comprehend how the rights of owners in common of a horse are to be exercised.

Alienation of Personal Property-Voluntary Gifts.

184

With regard to the alienation of personal property, it may be sufficient to notice the following general principles. By the common law personal property may pass by gift or grant, with or without deed (a); but a parol gift (and this is in conformity with the Roman law), without some act of delivery, will not alter the property, whether by act inter vivos or mortis causa (b); but when a gift inter vivos is perfected by delivery of possession of the thing, or delivery of a deed of gift, the donor cannot retract it, though made without any consideration (c). But if the gift be not rendered complete by delivery, it is *then not properly a gift but [*185] a contract; and this a man cannot be compelled to perform but upon a good and sufficient consideration (d), as will presently be more particularly noticed-a principle of considerable importance in reference to the peculiar jurisdiction of the Court of Chancery in regard to contracts. It has already been stated that by the stat. 8 & 9 Vict. c. 106, all leases and assignments of chattel interests, and surrenders in writing of interests, in any tenements and hereditaments, generally must be by deed (e).

Voluntary grants and gifts of personal estate and obligations, having been used for fraudulent purposes, particularly to defraud creditors of their claims, they became the subject of legislative provision. By the statute 3 Henry VII. c. 4, but more particularly the stat. of 13 Eliz. c. 5, made perpetual by 29 Eliz. c. 5, s. 1, before referred to, it is enacted that every feoffment, gift, grant, alienation, bargain and conveyance of lands and tenements, goods and chattels, or of any lease, rent, or profit, or charge, out of the same or any of them by writing or otherwise; and every bond, suit, judgment and execution, had or made to or for the intent or purpose to delay, hinder, or defraud creditors or others of their actions, suits, debts, &c., shall be deemed (only as against that person or persons, and his heirs, executors, and assigns, who may be disturbed, hindered, delayed or avoided) to be void. By the sixth section it is. provided that that enactment shall not extend to any estate or interest in lands, tenements, hereditaments, leases, rents, commons, profits, goods or chattels, upon good consideration and bonâ fide lawfully conveyed or assured to any person or persons, or bodies politic or corporate, not having at the time of such conveyance or assurance to them any notice or knowledge of such covin, fraud or collusion: penalties are imposed on those who are parties to such fraudulent transactions (f). Creditors, therefore, are protected from fraudulent alienations of personal estate as well as real, whereas the protection to purchasers (g) is confined to conveyances, charges, leases, and incumbrances of lands, tenements, and hereditaments.

Next as to contracts. A contract, generally speaking, differs from a grand or actual alienation in this, that it conveys an interest in action

(a) Com. Dig. Biens, D. 2.

(b) Smith v. Smith, Strange, 955; Irons V. Smallpiece, 2 Bar. & Ald. 551. 3; Bunn v. Markham, 2 Marsh. 552, et v. sup. p. 33. (c) 2 Bla. Comm. 441, Irons v. Smallpiece, ubi sup. p. 554.

(d) 2 Bla. Comm. ubi sup.

VOL. 1.-15

(e) Supra, p. 162; and see Neale on Real Prop. Acts, 33, 34.

(f) As also by § 3, 27 Eliz. c. 4; and see 2 Bla. Comm. 441.

(g) By the statute of the 27th Eliz. c. 4, sup. p. 172.

185

Agreements What are binding in Law.

merely, that is requiring an action to be brought to render it effectual. It is defined to be " an agreement upon sufficient consideration to do or *not to do a particular thing," from which definition, as Sir Wil[*186] liam Blackstone observes, three things are to be observed-the agreement, the consideration, and the thing to be done, or omitted. The essence of an agreement is a mutual bargain or convention, and, therefore, there must be at least two contracting parties, and those of sufficient ability, in regard to age, condition, and understanding, to make a contract (a): this excludes, of course, all purely unilateral promises and undertakings not under seal.

By the Statute of Frauds, 29 Car. II. c. 3, before referred to, it is enacted (b), as regards contracts, that no action shall be brought upon any special promise by an executor or administrator, to answer damages out of his own estate; or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages of another person; or to charge any person upon any agreement made upon consideration of marriage; or upon any contract, or sale of lands, tenements or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized (c).

It is also enacted (d) that no contract for the sale of any goods, wares, and merchandizes for the price of 10l. or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest, to bind the bargain, or in part payment, or that some note or memorandum in writing of the bargain be signed by the parties to be charged by such contracts, or their agents lawfully authorized. This clause is extended by the 9th Geo. IV. c. 14. § 7, to all such contracts, notwithstanding that the goods are to be delivered at a future time, and may not at the time of the contract be ready for delivery.

A consideration of some sort or other is absolutely necessary; there must be quid pro quo in every contract (e). An agreement, not under seal, to do or pay anything on one side without any compensation on the other is totally void at law, and a man cannot be compelled to perform it (f). Promissory notes furnish an exception, for by 3 & 4 Anne,

a nudum pactum was very different from that in which it was commonly understood by the Roman lawyers. With the Romans, the question whether a contract were a nudum pactum depended upon their doc trine as to stipulations by interrogation and response, which kind of compacts were binding when completed, with the forms prescribed; but without these formalities, verbal promises were nudu pacta. Consideration or no consideration appears to have been immaterial in this sense of a nudum pactum. See Fonblanque's note, Treatise of Equity, i. p. 335-40; and Inst.