Of Title to Personal Property, by Original Acquisition
NOTES
1.Quod ante nullius est, id naturali ratione occupanti conceditur. Inst. 2. 1. 12. Mr. Selden has shown, that among the ancient Hebrews, fruits, fish, animals, and everything found in desert or vacant places, belonged to the first occupant. De Jur. Nat. et Gent. jucta disciplinam Ebraeorum cited by Puf. b. 4. c. 6. sect. 5.
2. Finch's Law, 28, 178. Bro. tit. Property, pl. 18. 38. Wright, J. in Morrough v. Comyns, 1 Wils. 211.
3. See vol. ii. p. 95.
4. 1 Blacks. Com. 296.
5.Armory v. Flynn, 10 Johns. Rep. 102.
6. Dig. 47. 2. 44. sect. 4-10.
7. L. N.Y. sess. 24. ch. 43.
8. 3 Inst. 132.
9. De Jur. Bel. & Pac. b. 2. c. 8. sect. 7.
10. Inst.2. 1. 39.
11. Code Civil, No. 716. But the French code limits this right of the finder to that particular case. The general rule is, that all property vacant, and without a master, belongs to the state. Code, No. 539, 713, 714, 717; and Toullier, in his Droit Civil Francais, tom. 4 p. 37-42, complains much of the contradiction, confusion and uncertainty of the French regulations, on this subject of goods without an owner.
12. Foxley's case. 5 Co. 109. Cro. Eliz. 694.
13. Finch's Law, 212.
14. Laws of N.Y. sess. 36. ch. 21.
15. Ibid. sess. 10. ch. 28.
16. Dane's Abr. of American Law, ch. 76. art. 7. s. 12, 21, 23. 38. It is the general law of continental Europe, that wrecks belong to the nation, when the owner does not appear. Heinec. Elem. Jur. ord. Inst. s. 352, 353. Toullier, Droit Civil Francais, tom. 4. No. 42-46.
17. Dane's. Abr. ubi sup. s. 15, 16.
18. Ibid. s. 22.
19. Ibid. s. 21.
20. Code civil, No. 546, 547.
21.De acqui. rerum Dom. b. 2. ch .2. and 3.
22. Pothier, Traite du Droit du Propriété, No. 150. to No. 193. Toullier, Droit Civil Francais, tom. 3. No. 106. to No. 150.
23. Owen, 139.
24. 8 Johns. Rep. 432.
25. Inst. 2. 1. 37.
26. B. 2. tit. 3. sec. 2. art. 539.
27. 7 Johns. Rep. 473.
28.De Jure Maritimo, b. 2. c. 1. s. 7.
29. Dig. 6. 1. 61.
30.De rer div. 2. 1. s. 34.
31. 5 Hen. VII. 15. 12 Hen. VIII. 10. Fitz. Abr. Bar. 144. Bro. tit. Property, 23.
32. 5 Johns. Rep. 348.
33. Bro. tit. Property, pl. 23.
34. Inst. 2. 1. 25.
35. Inst. 2. 1. 26 and 28.
36. Popham, 38. pl. 2.
37. Pop. ub. sup. Ward v. Eyre. 2 Bulst. 323.
38.Colwill v. Reeves, 2 Campbell's N.P. 575.
39. 15 Vesey, 442.
40. 2 Johns. Ch. Rep. 108. Hart v. Ten Eyck. Sir William Scott, in the case of The Odin, 1 Rob. Rep. 208.
41. Art. 1. sect. 8.
42. Acts of Congress, 21st Feb. 1793, ch. 11th; and 17th April, 1800, ch.25.
43. Patents are no doubt procured in many cases for frivolous and useless alterations in articles, implements, and machines in common use, under the name of improvements; and the abuses arising from the facility in suing out patents, and provoking litigation, were painted in glowing colors by the district judge at New York. in Thompson v. Haight; (U. S. Law Journal, vol. i. 563 ) and yet the collection of models and machines in the patent office relating to every possible subject constitutes a singularly curious museum of the arts, and one strongly illustrative of the inventive and enterprising genius of our countrymen.
44.Woodcock v. Parker, 1 Gallis. 438. Bedford v. Hunt, 1 Mason, 302. Evans v. Eaton, 3 Wheaton, 454.
45.Whittemore v. Cutter, 1 Gallis. 478. Thompson v. Haight, U. S. L. Journal, vol. i. 563. Morris v. Huntington, 1 Paine, 348. Contra, Goodyear v. Mathews, 1 Paine, 300.
46.Lowell v. Lewis, 1 Mason, 182. Langdon v. De Groot, 1 Paine, 203.
47. The case of Hill v. Thompson, 8 Taunton, 375, and Evans v. Eaton, 7 Wheaton, 356, may be selected as samples of the intricacy and subtlety of such investigations.
48.Woodcock v. Parker, 1 Gallis. 438. Whittemore v. Cutter, 1 Gallis. 478. Odiorne v. Winkley, 2 Gallis. 51. Lowell v. Lewis, 1 Mason, 182. Evans v. Eaton, 7 Wheaton, 356.
49.Edgeberry v. Stephens, 2 Salle 447. Darcy v. Allen, Noy, 182, 183. The recent decisions in England seem, however, to throw some doubt over this point, for they speak generally, and without any qualification, of the necessity of the discovery being new; and in Wood v. Zimmer, 1 Holts.N. P. Rep 59. Lord Ch. J. Gibbs held, that the invention must be new to the world, and if it had been sold before, though by the inventor only, the patent would be void. If we were to judge from the language of the statute of James, the patentee himself must have been the true and first inventor, and there would seem to be no foundation for the opinion of Lord Holt, in Edgeberry v. Stephens. A recent French publication, however, states the English law precisely as laid down by Lord Holt; and that the English law means only new in England. The writer must have been informed, that such was the received doctrine in England. See M. Renouard's Traite des Brevets d'Invention, 197.
50.Morris v. Branson, cited in 2 H. Blacks. 489. Boulton v. Bull, ibid. 463. Hornblower v. Boulton, 8 Term Rep. 95.
51.Hill v. Thompson, 8 Taunton, 375. 3 Merivale, 629. Jessop's case, cited in 2 H. Blacks. 489.
52.Sullivan v. Bedfield, 1 Paine. 441. Hill v. Thompson, 3 Merivale, 622. Livingston v. Van Ingen, 9 Johns. Rep. 507. The law of patents in France is founded on decrees of the constituent assembly of the 31st of December, 1790, and 14th of May, 1791; and it assures to inventors of discoveries in the arts, for a certain period, the exclusive right to make and sell their discoveries, and it makes no distinction between Frenchmen and foreigners. The patent may be taken out for 5, 10, or 15 years, at the option of the patentee, under the charge of a tax proportioned to the time; and whoever first imports a foreign discovery or improvement, is entitled to the privilege of an inventor. The patentee must exhibit a true and accurate specification of the principles, plans, and models of his discovery or importation. If he obtains a patent for the same object in a foreign country, he forfeits his French patent. The French jurisprudence on this point is very fully considered by A. C. Renouard, in his Traite des Brevets d'Invention, de Perfectionnement et d'Importation. Paris, 1825. The same questions concerning priority of invention, and the requisite proofs, have disturbed the French tribunals, which have so long been agitated in ours. (Repertoire de Jurisprudence, tit. Brevet d'Inven. tion. Questions de Droit, tom. 5. pa. 187.) The law as to patents for new inventions and discoveries in the dominions of the Emperor of Austria, rests upon an imperial decree of the 8th of December, 1820. By that decree foreigners, residents and non-residents, may obtain patents on the same terms as the native subjects. The objects of the patents are new discoveries; but those are considered as new, which, although known in other countries, are not, at the time of the application, in practical use in the Austrian dominions, nor specifically described in any printed work. The patents may be taken out for fifteen years, and the application for them must describe accurately and minutely the invention, discovery, or improvement, and be accompanied with models, if the nature of the case requires them. The patentee must put his invention into practice within one year from the date of the patent, or he forfeits it. See the substance of the Austrian decree, published in April, 1824, by the Austrian consul, at New York. The Spanish patent law is founded on a decree of the King
and Cortes of 14th of October, 1820. It grants a monopoly of any art or manufacture, to the inventor, for ten years; to him who improves it, for six years; and to him who imports it, for five years. The law is well drawn and guarded, and is annexed to the Treatise of M. Renouard.
53. Acts of Congress, May 31, 1790, ch. 15, and April 29, 1802, ch. 36.
54.Miller v. Taylor, 4 Burr. 2303.
55. 4 Burr. 2408, Donaldson v. Becket. 7 Bro. P. C. 88. S. C. Beckford v. Hood, 7 Term Rep. 620.
56. Act of May 31, 1790. sect. 5.
57. The French law of copyright is founded on the republican decree of the 19th July, 1793, which gave to authors of writings of all kinds, composers of music, painters and engravers, a right for life in their works, and to their heirs, for ten years after their deaths, with strong provisions against the invasion of such literary property. One copy was to be deposited in the national library. The imperial decree of the 5th February, 1810, made some modifications of that law, and gave the right to the author for life, and to his wife, if she survived, for her life, and to their children for twenty years, and the right was secured by adequate civil penalties. A number of interesting questions have been discussed and decided in the French tribunals, under the above law, and they are reported in the Repertoire de Jurisprudence, par Merlin, tit. Contrefacon, sect. 1 to 15; and in his Questions de Limit, tit. Propriete litteraire, sect. 1 and 2. In the case of Masson & Besson v. Moutardier & Leclerc, in the latter work, sect. 1, a new edition of the Dictionary of the French Academy, with colorable additions only, was adjudged to be a fraudulent violation of the copyright, and Merlin has preserved his elaborate and eloquent argument in support of literary property. In, the case of Lahante & Bonnemaison v. Sieber, the question was concerning the rights of foreign authors, and it was decided and settled on appeal, in March, 1810, that the French assignee of a literary or musical work, not published abroad, acquired in France, after conforming to the usual terms of the French law; before any publication abroad, the exclusive copyright under the law of 1793. See Questions de Droit. tit. Propriété litteraire, sect. 3. It is understood to be lawful to publish in France, without the permission of the author a work already published in a foreign country. Repertoire, ub, sup. sect. 10. The French law is much more liberal in the protection of intellectual productions to authors and their heirs, than either the English or our American law; and it is a curious fact in the history of mankind, that the French national convention, in July, 1793, should have busied themselves with the project of a law of that kind, when the whole republic was at that time in the most violent convulsions, and the combined armies were invading France, and besieging Valenciennes;
when Paris was one scene of sedition, terror, proscription, imprisonment and judicial massacre under the forms of the revolutionary tribunal; when the convention had just been mutilated by its own violent denunciation and imprisonment of the deputies of the Gironde party, and the whole nation was preparing to rise in a mass to expel the invaders. If the production of such a law, at such a crisis, be not resolvable into mere vanity and affectation, then indeed we may well say, with Mr. Hume, so inconsistent is human nature with itself, and so easily do gentle, pacific and generous sentiments ally both with the most heroic courage, and the fiercest barbarity.
There is a disposition in France to enlarge still further the term of an author's property in his works; and the commissioners appointed by the king to frame a new law on the subject reported, in the summer of 1826, the draft of a law, in which they propose to give to authors and artists of works of all kinds, property in their works for life, and to their legal representatives for fifty years, from their death; and copyright in a work to be protected from piracy by representation, as well as from piracy by publication. In Germany, copyright is perpetual; but it cannot be of much value, for there is no one uniform Germanic legislation on the subject, to protect copyright among so many independent states, using a common language. This case of Germany shows how important it was in this country, that the law of copyright should rest on the broad basis of federal jurisdiction.
58. 5 Term Rep. 245.
59.Macklin v. Richardson, Amb. 694.
60.Morris v. Harris, and Morris v. Kelly, cited in Eden on Injunctions, 198.
61. Murray v. Elliston, 5 Barn. & A1d. 657.
62. Cowp. 623.
63. 11 East, 244. note.
64. 11 East, 244.
65.Clementi v. Walker, 2 Barn. & Cress. 861.
66. Eden on Injunctions, 199, 200.
67. 2 Eden, 329. Duke of Queensberry v. Shebbeare. 2 Merivale, 436. Southey v. Sherwood.
68.Pope v. Curl. 2 Atk. 342. Thompson v. Stanhope, Amb. 737.
69. 2 Ves. & Bea. 19.
70. 2 Ves. & Bea. 27. Perceval v. Phipps. 1 Ball. & B. 209. Earl of Branard v. Dunkin.
71.Wyatt v. Barnard, 3 Ves. & Bea. 77.
72.Mason v. Murray, cited in 1 East, 360.
73. Lord Kenyon. in 1 East, 361.
74.Gyles v. Wilcox, 2 Atk. 141.
75.Dodsley v. Kinnersley, Amb. 403.
76.Wilkins v. Aikin, 17 Vesey, 422.
77.Roworth v. Wilkes, 1 Campb. N. P. 94.
