The Jurist No. 923-VOL. XVIII. SEPTEMBER 16, 1854. NAMES OF THE CASES REPORTED IN THIS NUMBER. Ranger . The Great Western Railway Company.- ...... ..... 795 We propose in this paper to offer some observations on the already celebrated Beer Act, 17 & 18 Vict. c.79 -an act of an importance not to be measured by the lowliness of its subjects and incidents, but rather by the nature of its objects, or professed objects an act also which has perhaps carried further than any act of Parliament yet has, in a given space, that principle of looseness and ambiguity of expression which is the dominant feature of legislative literature. Whom the act means to exclude from participating in Sunday libations, in the hours made by it uncanonical, it has already puzzled magistrates, and good magistrates too, to divine. Several magistrates have held that a person migrating, for purposes of personal recreation, from London to Hampstead, or, of course, by parity of reasoning, any other suburban village, is a bonâ fide traveller within the meaning of the act. Another very able magistrate appeared startled by this doctrine, and, without actually overruling it, distinguished between such an amateur traveller and a professional traveller driving or conducting an omnibus between a suburban village and London, and held the latter species of traveller to be, at any rate, not within the act. We confess that we should rather have decided both cases in a different manner. That a gentleman who saunters up from Bedford-square to Hampstead for a morning's stroll should be called a traveller would certainly astonish Park, Burckhardt, or Layard, or even our own accomplished Eothen; on the other hand, what a man VOL. XVIII. J J COURT OF QUEEN'S BENCH. PRICE 18. Kerkin v. Kerkin.-(County Court-Proceedings to recover Possession-Title in Question-Devise of Freehold and Leasehold Premises-9 & 10 Vict. c. 95, ss. 58, 122) Judkins v. Atherton.-(Notice of Trial by Defendant -Default of Plaintiff-Suggestion-Common-law Procedure Act, 15 & 16 Vict. c. 76, s. 101-Peremptory Undertaking-Affidavit of Merits) .. .... 813 813 is, who rides a hundred miles a day on the step of an omnibus, professedly to guide and direct a machine for conveying other people on their affairs, unless he is a traveller, is puzzling to make out. In the meantime, however, the proprietors of the country taverns in the regions round about London, and the excursionists, have tolerably settled the matter practically, by acting in concert, and in such masses, that it defies the ubiquitous vigilance of the police to collect the necessary evidence for laying the matter fully before the magistracy. The publicans and the sinners have combined, and there is no making head against them. Ourselves being somewhat addicted to Sabbatarian pedestrianism-being, like other mere mortals, capable of hunger and thirst, and that not always necessarily at one invariable hour, and not deeming it either agreeable or altogether decent on all occasions to carry ostentatiously exposed supplies of food and wine, we have too much sympathy with the amateur bonâ fide traveller to form, perhaps, an unbiassed opinion whether the Legislature meant, by that term, any person walking or riding for his pure pleasure and recreation from London to Richmond, or from Richmond to Kew, or the like. Certainly, if clothing himself with the dust of the north road for four miles, clothes a man also with the character of a traveller, it is difficult to say that he is not equally a traveller who, embarking on a steam-boat at London-bridge, debouches on the quay at Richmond. At the same time, although in old plays and novels one does meet the expression of "travelling" and "traveller" applied to journies of such distances, he recollects at the same time, that, in the days therein described, a journey of pleasure purely, on any London road, was not. An invitation to dine at Richmond or Hounslow, if such a thing existed, involved peril of life or limb, or at least of purse, and required a brace of pistols and a long sword. But it certainly would at this day startle any gentleman receiving, at his villa at Richmond or Wimbledon, the visit of a London friend, to be told that he had travelled from London. If the Legislature had taken the greatest pains to search for the word in the language the least capable of bearing an accurate meaning, they could hardly have been more successful than in selecting the word "traveller." Clearly, the mere fact of travelling a short distance at a time cannot exclude the application of the word "traveller;" clearly also it is not necessary to travel for business to be a traveller, for no one would dispute that a man who roams about Syria or Egypt is a traveller; clearly, on the other hand also, a man who goes habitually within a given circle, small or large, round any trading town, to obtain orders for a tradesman, is a traveller, whether he does it with a pack on his back, or in a large phaeton with a large horse, or in the comfortable arm-chairs of firstclass railway carriages. So that it is not travelling for business, nor is it necessarily travelling a great distance, nor is it the mode of travelling, that constitutes a traveller; and yet, if a gentleman, or any one else, walks a short distance, for his amusement, in the neighbourhood of this great city, or rows his outrigger from Searle's to Richmond, it clashes with all one's notions of the use of language, to call him a "bonâ fide traveller." What the broad meaning, the policy of the Legislature, was in passing the Beer Act, is equally difficult to ascertain. It cannot have meant to exclude Sunday trading in the forbidden hours, because it permits it sub modo, and with an exception so vague as to have already rendered the act nearly a dead letter. And, moreover, it will be observed, that the act only excludes the keeping open for the sale of drinks; eatables are not mentioned in the act; and we apprehend it to be clear, that anybody taking his own wine or other drinkables with him might lawfully be entertained with any amount of dinner, of any degree of sumptuousness, between the hours of half-past two and six. The act cannot have been addressed simply to the prevention of tippling and drunkenness, because bonâ fide travellers, once in the sanctum, may be permitted to tipple to their heart's content without any infringement of the act. Then, again, it ought not to be supposed, looking at the language of the act, that it meant to exclude from participation in the uses of a tavern those only who live in the immediate neighbourhood, letting in, as it does let in, all those who come from any, even an almost illusory, distance; for the result of that would be neither to prevent trading nor drinking, but simply to make every man desirous of drinking go a little distance for it, instead of walking across the street; and one ought not to suppose the Legislature so very clumsy. Nevertheless, this, we apprehend, was the intention of the Legislature, viz. to prevent simply the congregation of habitual drinkers in each tavern, and not to interfere with the moderate and legitimate use of a tavern by persons requiring its use for rational refreshment. That it has failed in doing anything beyond puzzling a few magistrates for a short time, and eliciting a few speeches from a few tavern-masters, is clear. But it may be questioned whether this is a subject on which any amount of legislative wisdom could draw an act practically advantageous to the whole public, as the circumstances of different towns and of different classes of society are so varied, that a regulation perfectly whole some for one may be tyrannical towards another, and useless towards a third. The real evils to be removed are, Sunday trading not absolutely necessary, and drunkenness and riot. Long custom has established the total unnecessity of tavern trading during the hours of divine service; but out of those hours, there are very few data for determining the question when and where it is unavoidable, and that difficulty would be much better dealt with if left to the good feeling and religious sentiments of the community at large, than it can be by specific rules laid down by a body of gentlemen necessarily ignorant of the details of the plebeian life, for which they are legislating. The real, practical, and crying evil of drunkenness and riot would be much better provided for by the total abolition of the system of public-house licenses, throwing open altogether that trade, and making it as lawful for any one who chooses to trade as a publican to do so, as it is for him to be a tailor or a baker; coupling, however, with such perfect freedom of trade, a liability in publicans to be personally responsible for the good behaviour of their guests, and making them subject to fines, and pretty heavy fines, for permitting any drunkenness or riot in their houses. If this were made the principle of legisla tion for houses of public entertainment, it might safely be left to the prudence of their owners to keep them open at all the hours on the Sunday, on which the present act has vainly attempted to put its veto. question. In that case an application to restrain the piracy of a label constituting a trade-mark was refused because the bill did not charge a fraudulent use of the. mark to promote the sale of a spurious article. The Vice-Chancellor added, that the case could not be rested on copyright, because the Court does not protect ference to a label which not only was first printed and the copyright of a foreigner. That was said with republished in France, but was not a literary composi tion at all, and, as an engraving, was, by the express terms of the stat. 17 Geo. 3, c. 57, unprotected, because engraved out of Great Britain. That was the single point decided in Page v. Townsend, (5 Sim. 395). Delondre v. Shaw (2 Sim. 237) has no bearing on this Guichard v. Mori (9 L. J., O. S., Ch., 227) was a mere repetition of Clementi v. Walker. In D'Almaine v. Boosey, (1 Y. & C. 288), Lord Abinger, C. B., sitting in equity, decided that the English assignee of a foreign work, first publishing here, was entitled to copyright, though the assignment. was executed abroad, and the author never came to this country. In Bentley v. Forster (10 Sim. 329) the assignee of a foreign author domiciled in England was held entitled to protection for a work which had been com- : posed, as it seems, abroad. The Vice-Chancellor con-; tinued the injunction, and said that, in his opinion, a work first published here was protected, although composed abroad by an alien. He directed an action to be brought, according to the usual practice, but the defendant submitted. In Chappell v. Purday (4 Y. & C. 485) the question was the same as in Clementi v. Walker, and Lorê terfere by injunction, but he reiterated his opinion of Abinger, C. B., treating it as doubtful, refused to inthe general principle. In the second case of Chappell v. Purday (14 M. & W. 303) the point actually decided was the same as in Clementi v. Walker. The Court said, that clearly foreigner, first publishing abroad, could neither have nor confer a copyright here at common law or by the statute; and though admitting that the authorities pointed to a different conclusion, they added that they thought it doubtful whether a foreigner, not resident here, could have an English copyright at all. This doubt was the germ of the decision by the same Court in Boosey v. Purday. In Cocks v. Purday (5 C. B. 860) the case came within the present Copyright Act, and after full argument it was decided that there was copyright in the work of an alien residing abroad, published here, contemporaneously with the publication abroad, by an English publisher, claiming under a verbal assignment from the author, which was valid according to the law of the place where it was made. The decision was expressly founded on the general principle, that an alien may acquire personal rights and maintain personal actions in respect of injuries to them in this country. In Boosey v. Purday (13 Jur., part 1, p. 918; 4 Exch. 145) the work in question was Bellini's "Sonnambula," and the Court of Exchequer held that Boosey had no copyright. junction, observing that he never had any doubt on the subject. Up to this point it appears that the authorities, with the single exception of Boosey v. Purday, are consistent with each other and with principle, and that the right of a foreigner residing abroad at the time of publication has been affirmed in four cases, two of them under the repealed statutes, and by the Court of Exchequer Chamber in Boosey v. Jefferys. We now come to the ultimate decision in Boosey v. Jefferys. The opinions of Coleridge, Maule, Wightman, Erle, Williams, and Crompton, JJ., were in favour of the copyright. To this list we must add Lord Campbell, C. J., Patteson and Cresswell, JJ., who had joined in the decision in the Exchequer Chamber, and Wilde, C. J., and Coltman, J., who joined in deciding Cocks v. Purday, and Lord Abinger, Sir J. L. Knight Bruce, and Sir James Parker. The minority against the copyright consisted of Jervis, C. J., Pollock, C. B., Parke and Alderson, BB. The Peers who advised the reversal of the decision below were the Lord Chancellor, Lord Brougham, and Lord St. Leonards. In Boosey v. Davidson (13 Jur., part 1, p. 678; 13 Q. B. 257) the case differed from that of Cocks v. Purday in not coming within the stat. 5 & 6 Vict. c. 45. The Lord Chancellor distinguished between the right Bellini, being an alien, resident in the Austrian do- of the author of an unpublished work to prevent its minions, had assigned the copyright of his unpub- publication, and the copyright which may subsist after lished opera, "La Sonnambula," to Ricordi, an alien, publication. The latter, he said, is now entirely regualso resident abroad. Ricordi, coming to London, as-lated by statute, and in determining its limits, we must signed the copyright to Boosey, who published the look exclusively to the statutes on which it depends, which work in London on the same day on which it was first in the present case were the 8 Ann. c. 19, and the 54 published at Milan, but a few hours later-a circum- Geo. 3, c. 156. The term "author" in the statute of stance which in Boosey v. Purday, mentioned below, Anne must refer to British authors only. Primâ facie the Court of Exchequer (overruling the decision of Pol- the Legislature of this country must be taken to make lock, C. B., at Nisi Prius, commented upon 12 Jur., laws for its own subjects exclusively; and when an expart 2, p. 323) held to be immaterial. The publication clusive privilege is given to a particular class at the was in 1831, so that the case was governed by the old expense of the rest of the subjects, the object must be Copyright Acts. It was fully argued, and the Court of taken to have been national, and the privileged class Queen's Bench decided in favour of the copyright. to be confined to a portion of the community for the general advantage of which the enactment is made, including as subjects all persons within the Queen's dominions, though owing her only a temporary allegiance. A stranger having composed a work abroad, and coming here and publishing the first week or day of his arrival, would be within the act. Copyright commences at the moment of publication; and if the author is at that time in England, he is an English author. He is not an English author, if, being abroad and a foreigner, he publishes by an agent here. construction agrees with the admitted condition, that the first publication must be here. There is no reason in that exception if the statute extends to foreigners at all. [Why not? It makes the place of first publication the test, not the status of the author. An English author residing here, and first publishing abroad, loses his copyright. Nothing can shew more clearly that the status of the author, who may be dead before any publication takes place, is absolutely immaterial.] His Lordship then reviewed the cases, but erred in stating that the decision in Chappell v. Purday (11 M. & W. 303) was adverse to the foreigner's title, and that the authorities were nearly equally balanced. In Ollendorf v. Black (14 Jur., part 1, p. 1080) an alien author domiciled abroad, but occasionally residing in England, first published his work in London in 1843, while residing there. On a motion for an injunction, it was urged that the author's temporary residence here distinguished the case from Boosey v. Purday, and the distinction was noticed by the judge, (Sir J. L. Knight Bruce, V. C.), who, however, expressed a strong opiion in favour of the doctrine in Cocks v. Purday. His Honor said, "Can any conclusion be imagined more njurious to literature than the decision in Boosey v. Purday? Surely literature is of no country, and the bject of the act of Parliament was to protect literature enerally." The litigation commenced in Boosey v. Purday was ontinued (substantially between the same parties, for he persons chiefly interested in defeating the foreign opyright subscribed to the expenses of the defence) in Boosey v. Jefferys, (15 Jur., part 1, p. 540; 6 Exch. 80). There also the title to the music in "La Sonambula" was in question; and Rolfe, B., having held t Nisi Prius against the copyright, his decision was nanimously reversed by the Court of Exchequer hamber, (consisting of Lord Campbell, C. J., Patteon, Maule, Wightman, Cresswell, Erle, and Wilams, JJ.) This Lord Brougham denied the existence of a copyright at the common law, treating that question as entirely open and speculative, because it was not decided in Donaldson v. Beckett. As the existence of the commonlaw right, until it was repealed by the statute of Anne, is established by the authorities cited above, which have never been overruled, and was indeed assumed in the Pending the appeal in Boosey v. Jefferys, the case of statute of Anne, his Lordship's argument is noticeable uxton v. James (16 Jur., part 1, p. 15; 5 De G. & S. only as a curiosity. Its drift is to prove that the notion 0) was decided upon the effect of the stat. 5 & 6 Vict. of literary property is impossible, or a logical contra45. The work in question was Mendelssohn's music diction, and therefore could not have been parcel of the "The Midsummer Night's Dream," sold by the common law, but required for its establishment the omposer, an alien residing abroad, to the plaintiff, a energy of the royal prerogative or of Parliament; for ublisher residing in London, and first published in though neither God nor the common law can will a conondon in 1844. Sir J. Parker, V. C., granted an in-tradiction, the Queen or the Legislature, it seems, may. "The negation of that right," said his Lordship, "only implies that we refuse to acknowledge a property in things by their nature incapable of being held in severalty, and that we recoil from adopting a position which involves contradiction." Lord St. Leonards adopted and aggravated the old confusion of inventions in manufactures with literary works, with a view to shew that copyright could not have existed by the common law; adding, however, that a common-law recognition of copyright would not help a foreigner residing abroad. [Why not, as much as the recognition of any other kind of property or right? A., being a Roman in possession of a picture at Rome, assigns it there to B.; the picture never comes to B.'s possession, but is wrongfully converted by C., and brought to this country. Has not B. a remedy in our courts by the common law? What difference can it make that the chattel is incorporeal, if it be recognised as property by our law? The common law protects a man's character without inquiring whether he be native or alien, resident here or abroad. It is admitted that an author has by the common law a remedy against the pirate of his manuscript works. Has not an alien author such a remedy, or must he be in this country when the wrong is committed?] After repeating the proposition that a statute is intended only for the benefit of residents and subjects, his Lordship made the extravagant assertion that there was no authority of any weight on the point to be decided. We must quote the next passage, as an amusing instance of the mistakes to which even a great lawyer is liable when he undertakes to criticise at sight. The statute of Anne "is by no means scientifically framed, and singularly enough, in the very statement of it, one would hardly suppose what its object was, for it is stated, in the first place, that the object is to give to authors the right to copies. The truth is, the copies, as copies, are vested in the authors without the assistance of Parliament at all." We must infer that his Lordship has taken the non-existence of adverse authorities on trust, for he cannot have read the reports of Millar v. Taylor, and the other copyright cases decided in George the Third's reign, without noticing the constant use of "copy" in the sense of pattern or mould, to express the exclusive right to make copies, of which phrase our present word "copyright" is a mere inversion. His Lordship admitted that a natural-born subject residing abroad might acquire a copyright here, because of his natural allegiance, which he could not shake off. But the act intended, that as to a foreign book, it must be first published here, first printed here, and the publication of it here must be personally superintended by the author. There being no common-law right in a foreigner, and the statute not applying to foreigners, qua foreigners, a person must be a subject of the realm for the time being, at least, to have the benefit of the act. Bellini at Milan could have no copyright here under the Milanese law, nor under our law while he remained there. If he had no right in himself, he could assign none. What he assigned to Ricordi was the Milanese copyright. [It was all the right existing or obtainable anywhere in respect of the work assigned.] The assignment by Ricordi to Boosey was confined to publication in the United Kingdom, excluding other parts of the British dominions. Now, it is perfectly clear that copyright (as distinguished from the right to license) is indivisible. [This, if perfectly clear, is also perfectly new.] The assignment, therefore, being partial, would be void. [Why not good as a license? (See Sweet v. Cator, 5 Jur. 68; 11 Sim. 578; 17 Jur., part 2, p. 487).] The assignment to Ricordi was, at any rate, void for want of two witnesses. [This last objection is the only one of any weight. The statute of Anne (sect. 1) prohibited the printing or reprinting of any book without the con sent of the proprietor first given in writing, attested by two witnesses-a prohibition which clearly extended to books in manuscript. From this it has been inferred, and is now settled law, that while that act was in force no assignment of copyright was valid without the attestation of two witnesses. (Davidson v. Bohn, 6 C. B. 456).] The substance of the judgments may be thus recapitulated:-First, the question as to copyright under the repealed acts has nothing to do with the so-called copyright which an author is supposed to have before publication. Secondly, the repealed statutes only give copyright when the author is at the moment of publication either a British subject or a person within the British dominions. Thirdly, (per Lords Brougham and St. Leonards), there never was any copyright by the common law. Fourthly, (per Lord St. Leonards), an assignment of copyright limited to a part of the Queen's dominions is wholly void. Fifthly, (per Lord St. Leonards), an assignment of copyright under the repealed acts is void if it is not attested by two witnesses. Some curious consequences flow from these propositions. Thus::-an English author assigns his copyright and dies before publication: the purchaser loses the copyright, for copyright does not exist and cannot be assigned before publication, and the author was neither a subject nor a resident at the time of publication. Again: the author of a book first published abroad cannot have the benefit of the International Copyright Act, 7 & 8 Vict. c. 12, unless he owes allegiance to the Queen at the time of making the prescribed entry; for that act expresses no intention to benefit persons who do not owe allegiance to the Queen. Let us now see how these propositions (not one of which, however, is incontrovertible law, for the decision may be rested either on the second alone, on the fourth alone, or on the fifth alone) affect by analogy the construction of the existing Copyright Acts, under which it is settled, by authorities not yet overruled, (Cocks v. Purday, Buxton v. James, and the dictum in Ollendorf v. Black), that copyright may be acquired by the first publication in this country of the work of an alien who never comes here. The dicta of Lords Brougham and St. Leonards denying the common-law right prior to the statutes, being unsupported by a single decision, and contradicted by many, may be disregarded. It is settled, first, that the author of a book has up to the time of publication the sole right to publish; secondly, that this right is perpetual, and transmissible to executors, (Queensbury v. Shebbeare, 2 Eden, 329; Webb v. Rose, 4 Burr. 2330; 3 Swanst. 674); and, thirdly, that being transmissible to executors, it is property, and assignable. Now, these are rights at the common law, and there is no pretence for saying that the common law has made a special exemption of literary property from its general recognition of the rights of property in an alien who resides abroad. If the unpublished work of an alien author were copied and published here without his consent, he would, while residing abroad, have the same remedies here as if he had been a British subject. An alien author, then, has in this country, independently of any statute, rights of property in respect of his unpublished work. Such rights are, of necessity, assignable, and being personal rights, assignable according to the law of the place where the assignment is made. We now turn to the present Copyright Act, 5 & 6 Vict. c. 45. It repeals the former acts, and expressly excludes the construction put upon them in Jefferys v. Boosey, by defining "copyright" to mean "the sole and exclusive liberty of printing or otherwise multiplying copies of any subject to which the said word is herein applied;" and "assigns" to mean and include "every person in whom the interest of an author in copyright shall be vested, whether derived from such author before or after the publication of any book, and whether acquired by sale, gift, bequest, or by operation of law, or otherwise." It then enacts, "that the copyright in every book which shall, after the passing of this act, be published in the lifetime of its author, shall endure for the natural life of such author, and for the further term of seven years, commencing at the time of his death, and shall be the property of such author and his assigns; provided that if the said term of seven years shall expire before the end of forty-two years from the first publication of such book, the copyright shall in that case endure for such period of forty-two years; and that the copyright in every book which shall be published after the death of its author shall endure for the term of forty-two years from the first publication thereof, and shall be the property of the proprietor of the author's manuscript from which such book shall be first published, and his assigns." We have, then, this much clear-that a foreign author, resident abroad, has the exclusive right of multiplying copies of his unpublished work; that such right is a common-law copyright expressly recognised in, but not depending on or affected by, the present act, and is assignable; that the assignee before publication is expressly within the purview of the act; and therefore that even admitting the principle of the late decision to be applicable to the present act, an assignee, resident here, of the copyright of the unpublished work of an alien residing abroad, is within the act, and may acquire a copyright by first publishing here. The word "composed" occurs but once in the act. The expression throughout is "first publication;" except in the 17th section, which is founded on the prohibitory clauses in some of the repealed acts, (referred to in an article on this subject in 12 Jur., part 2, p. 322), and prohibits under penalties the unauthorised 'importation of copies "of any printed works first composed or written, or printed and published in any part of the United Kingdom, wherein there shall be copyright." Even as it stands, this 17th section does not extend to the work of an English author printed abroad but first published here, although there can be no doubt that there would be copyright in such a work. things, can only be enjoyed by a person within the jurisdiction. But the notion of a class of rights to the acquisition of which alienage is no disqualification if the person is within the jurisdiction, and absence is no disqualification if the person is not an alien-rights which an agent can acquire for a native principal wherever he may be, and which an agent in London can acquire for an alien principal to-day if that principal happens to be in New Zealand, but cannot acquire for him if he sailed yesterday for New York— the notion of such a class of rights is peculiar to the judges who have decided Boosey v. Jefferys, and is not likely to be adopted in any different case. The International Copyright Act, 7 & 8 Vict. c. 12, s. 2, fortunately supplies a short demonstration ex absurdo of the inapplicability of the late decision to the existing statutes. That act enables the Queen, by order in Council, to direct, "that as respects all or any particular class or classes of the following works, namely, books, 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 be named in such order, the authors thereof respectively, their respective executors, &c., shall have the privilege of copyright therein during such period or respective periods as shall be defined in such order, not exceeding" &c. This does not apply to any work first published in this country. It clearly does apply to the works of nonresident aliens. Now, if the construction in Jefferys v. Boosey is to be extended to the present Copyright Acts, this absurdity will follow-that under the convention with France, a French author, first publishing abroad, may acquire a British copyright without leaving France, but he cannot do so if he publish first in England. We have, lastly, the 4th section of the Alien Act, 7 & 8 Vict. c. 66, which enacts, "That from and after the passing of this act every alien, being the subject of a friendly state, shall and may take and hold, by purchase, gift, bequest, representation, or otherwise, every species of personal property, [copyright is, by the stat. 5 & 6 Vict. c. 45, s. 25, expressly declared to be personal property], except chattels real, as fully and effectually, to all intents and purposes, and with the same rights, remedies, exemptions, privileges, and capacities, as if he were a naturalborn subject of the United Kingdom." This enactment is not unexceptionable in form. It is, in fact, merely declaratory of the common law, and should not have been expressed prospectively; but, however taken, it either condemns the decision in Jef ferys v. Boosey, or confines it to cases which arose before the passing of the Alien Act. It appears therefore: 1. That the copyright of a foreigner residing abroad, and first publishing here after the 1st July, 1842, is established by the plain language of the statutes, and by two independent decisions. 2. That such right is not negatived by a single decision or dictum. But we contend further, that the rule of construction laid down in the late case does not exist, and will not be recognised hereafter; that the decision must be treated as an anomaly, only to be followed in cases identical in circumstances and governed by the same statutes. It is a clear principle that every person (not being by hostility or otherwise an outlaw) is entitled to the benefit of every rule of the common law and every enactment within the terms of which he can bring himself. Residence in this country, or allegiance to the Crown, has nothing to do with rights of property here, except in the cases specially provided for. Indeed, the contrary proposition, though it has been asserted in the highest court, will not bear a moment's examination. It would deprive non-resident foreigners of the benefit of almost every statute on the roll. There is scarcely an enactment giving or facilitating remedies in our courts, or providing for the protection of personal property, which makes any mention of foreigners; yet no one supposes that a person, bringing himself in all respects within the terms of any of these enactments, is beyond their scope, if he be an alien not resident here. Whatever rights in respect of personal property a British subject may acquire in this country, through an agent or otherwise, while he resides abroad, an alien friend may acquire, unless his alienage has been expressly made a disqualification. There are some rights which an alien, wherever domiciled or resident, cannot acquire; these are all the subjects of express statutory or commonlaw rules. There are other rights which depend upon domicile. There are others which, from the nature of | begotten. 3. That neither the decision in the recent case in the House of Lords, nor the reasons given for that decision, can in any way govern the construction of the statutes which are now in force. The Queen has been pleased to direct letters-patent to be passed under the Great Seal granting the dignity of a Baronet of the United Kingdom of Great Britain and Ireland unto John Beverley Robinson, Esq., C. B., Chief Justice of that part of her Majesty's province of Canada called Upper Canada; also unto Louis Hypolite Lafontaine, Esq., of the city of Montreal, Chief Justice of that part of her Majesty's province of Canada called Lower Canada, and to their heirs male lawfully |