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and kills it there, the property belongs to him in whose ground it was killed (e): whereas, if after being so started, it is killed in the ground of a third person, the property belongs neither to the owner of the first ground, nor yet to the owner of the second, but it vests in the person who started and killed it (f), though guilty of a trespass against both the owners. If it be started, however, by a stranger in one man's chase or free warren, and hunted into another liberty, the property continues in the owner of the chase or warren (g). These distinctions seem to show, that in general the property is acquired by the seizure or occupancy, though that cannot prevail against the better claim of him in whose grounds the animal is both killed and started (and who therefore may be said to be entitled ratione soli); or of him who has already à qualified property in it, ratione privilegii.
3. [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 (h); 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 (i). And these doctrines are implicitly copied and adopted by our Bracton (j), and have since been confirmed by many resolutions of the [Courts (k).] With respect to accession by breeding from animals, in particular, it is held, that [of all tame and domestic animals the brood belongs to the owner of the dam or mother'; the English law agreeing with the civil, that partus sequitur ventrem in the brute creation, though for the most part, in the human species, it disallows that maxim. And therefore in the laws of England (1), as well as Rome (m), “ si equam meam equus tuus prægnantem fecerit, non est tuum sed meum quod natum est.” And for this Puffendorf (n) gives a sensible reason, not only because the male is frequently unknown, but also because the dam, during the time of her pregnancy, is almost wholly useless to the proprietor, and must be maintained with greater expense and care; wherefore, as the owner is a loser by her pregnancy, he ought to be the gainer by her brood. An exception to this rule is in the case of young cygnets, which belong equally to the owners of the cock and hen, and shall be divided between them (o). But here the reason of the general rule ceases, and cessante ratione cessat et ipsa lex; for the male is well known by his constant association with the female ; and for the same reason, the owner of the one doth not suffer more disadvantage during the time of pregnancy and nurture, than the owner of the other (p).]
(e) Sutton v. Moody, Lord Raym. 251; 12 Mod. 145 ; 2 Salk. 556; 3 Salk. 290 ; Comb. 458, S.C.
(f) Ibid. ; Farr, 18.
Churchward v. Studdy, 14 East, 249.
(h) Inst. 2, 1, 25, 26, 31 ; Ff. 6, 1, 5.
(i) Inst. 2, 1, 25, 34.
4. To the same general head belongs also (the case of confusion of goods, where those of two persons are so intermixed that the several portions can be no longer distinguished ;] and here the English law partly (agrees with and partly differs from the civil. If the intermixture be by consent, it seems that, in both laws, the proprietors have an interest in common, in proportion to their respective shares (q). But if one wilfully 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 with the mixture, yet allows a satisfaction to the other, for what he has so improvidently lost. 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 (r).] It is to be observed, however, that this rule applies only to cases where the confusion is such, as to create a difficulty in the subsequent apportionment of the respective shares. For if the goods continue to be distinguishable, as in the instance of articles of furniture thrown together, the confusion makes no alteration in the property (s). And the case is the same where the quality of the articles is uniform, and the original quantities known; for under such circumstances the party, by whose act the confusion took place, would still be entitled (as it seems) to claim his proper quantity ít).
OF TITLE BY INVENTION.
It was noticed in a former chapter, that there are a sort of chattels that may be termed incorporeal, and that among these are to be included patent rights and copyrights (a). To these, as very important in their character, we now propose to refer with greater particularity; and as they both are founded on the same title, viz. that of invention, or the original conception of genius, they may with propriety be considered together, within the compass of the same chapter.
I. By a "patent right” we are to understand a privilege, granted by the crown to the first inventor of any new contrivance in the manufactures, that he alone shall be entitled, during a limited period, to make articles according to his own invention. It is so called, because the instrument, by which it is bestowed, is always in the form of letters-patent, under the great seal, which is the established mode of royal grant (6). To confer on any individual the exclusive right of carrying on a particular trade or manufacture is, in general, beyond the lawful bounds of the royal prerogative. It amounted, at common law, to a species of offence called monopoly (c); and it is declared, by the Statute of Monopolies, 21 Jac. I. c. 3, to be “al“ together contrary to the laws of this realm.” But an exception was always made in favour of new inventors;
(a) Vide sup. p. 9.
(6) As to royal grants in general, vide sup. vol 1. p. 616; post, bk. v.
(c) 3 Inst. 181; et vide post, bk. vi. C. XI.
to whom it was held, that the crown might lawfully concede, for a reasonable period, a privilege of this description (d); because such grants, while they tended to encourage useful ingenuity (e), encroached on no right of which others were already in possession. In accordance with which principle, the statute of James, also, excepts (f) from its general declaration against monopolies, “all letters“patent for the term of fourteen years or under, by which “ the privilege of sole working or making any new manu“ factures within this realm, which others at the time of “granting the letters-patent shall not use, shall be granted “ to the true and first inventor thereof; so as they be not “contrary to law, nor mischievous to the state, nor to the “ hurt of trade, nor generally inconvenient (g).”
Since the passing of this act, no patent right can be valid unless it range itself within the terms of the exception above referred to; for where not within those terms, it necessarily falls under the declaration against monopolies contained in the same statute (h). It results from this consideration, that no such 'right can be legally granted for any period longer than fourteen years. It also follows that the subject of a patent must be a “new manufacture within this realm,” for such are the terms of the exception. And, first, it must be a manufacture, that is, some article fabricated by the hand of màn (i); though a patent may be taken out, not only for an entire article, but for an addition by way of improvement, to one already existing (k). The manufacture must also bé new; and the statúte has added to that condition, that it must be such as “others at the time of granting such letters-patent shall
(d) Hawk. b. 1, c. 79, s. 6.
(h) Vide per Buller, J., Boulton v. Bull, 2 H. Bl. 486.
(i) See Hornblower v. Boulton, 8 T. R. 99; Boulton v. Bull, 2 H. BI.
482; The King v. Wheeler, 2 B. &
(k) Hornblower v. Boulton, ubi sup. ; Crane v. Price, 4 Man. & G. 580.