Review: Leverson's Copyright and Patents.

"The greatest possible inducement will be the greatest possible proportion of what he has produced, that is, wherever practicable, the whole of it, less the least possible amount that shall be necessary for the purposes of protection from depredators and assailants, whether Not that for one moment I would do so from within or without: meaning by whatever much injustice to the Common Law of Eng-practicable the non-existence of a preponderatland, as to suppose that which goes by the ing inconvenience. So important is the giving name as calculated in any but a remote degree of this inducement felt to be, that rather than to promote so insignificant an object, so con- give less to one set of labourers than the full temptible an end, as the welfare of those sub-amouut of the produce of their labour, such jected to its rules-far from it-in innumerable instances in which the law has been established. But on points such as the present, in no way fettered by Statute or decision, such, if it have any meaning at all, must be the meaning of the phrase the Common Law.''

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sufficient inducement be left to the thinker. | property to the tailor in the coat he has made, The right of property, then, of the author in or the price he has received therefor. his thoughts, when expressed by signs, may be, and experience teaches that it is, subject to a limitation in point of duration, by the existence of antagonistic convenience attached to the dissemination of thought, not extending to the right of property in other produce of labour. I say a limitation in point of duration, and for this reason,-other things equal that motive is least efficient, the operation whereof is most remote. Hence the abatement made from the labour inducing motives should be remote as possible; also it is that limitation, otherwise convenient to the community, being that to which the inconvenience of uncertainty is attached in the least degree.

In each case all others are excluded from enjoyment. Hands off,' exclaims society; and its reason in each case is alike. But because an inconvenience in the shape of uncertainty exists in the case of property in thought, and does not exist in a noticeable degree in the case of property in the coat, society requires the thinker to remove this uncertainty, on pain of perceiving the results of his labour become the common property of the community.

"To the visual signs of thought the thinker may acquire right in the modes appointed for the acquirement of other species of property, failing such acquirement, he possesses still the right of property in his thought, and that alone. Can it be said, that in these thoughts others should acquire, without his consent, a right of property?

Expressed by visual signs, the discoverer, or author, publishes his thoughts to the purchaser of their expression, at the price to which the author and purchaser agree. Of these thoughts for his own use, the purchaser of the signs by which they are expressed becomes the

possessor.

"If any other means can be devised by which the exclusive enjoyment of the produce of his labour can be assured to the author, than the exclusive right of giving his thoughts to another, adopt such means; for my own part I know of none. On the other hand, to restrict him who shall thus have purchased the author's thoughts from every application thereof to any purpose of utility, would in effect put a stop to the purchase. To restrict him from their expression by vocal signs, or from the personal and manual copy of their visual ex. pression, would in most cases be productive of far greater inconvenience than such restriction purports to prevent.

"But he who purchases the visual signs of thought, of that which he has purchased may dispose, this follows from the principles of contracts. That he who purchases these visual signs may know the vendor has title for the sale, arrangements should exist for the ascertainment of the owner,-as by registration and the like. Means also should be provided, by which such ownership shall appear on the subject of sale.

Hence copyright, or patent-right, is not the right of multiplying copies, but the right to the produce of man's labour, often of a kind the most prolific of all labour of benefit to society.

"In establishing regulations for the convenient direction and exercise of the right in this peculiar instance, the legislature should impose such regulations and limitations as would produce, on the whole, the greatest proportionate advantage, compared with the disadvantages inseparably connected with this, as with all other human actions and regulations. Whether the rights that have been established with regard to ownership of thoughts expressed by visual signs, are the meetest for the welfare of society, is not my present purpose to inquire, as it would need a complete exposition of the existing law thereon."

We must refer to Mr. Leverson's Essay for the further development of his views in support of the Common Law right of an author or inventor to the exclusive privilege invention. The argument is conducted with of publishing copies of his original work or much force and earnestness, and reflects credit on the Author for the zeal and eloquence with which he advocates the interests of literary and scientific men.

The Common Law Procedure Acts of 1852 and 1854, with Notes containing all the Cases either already expressly decided on or tending to elucidate them. With an Appendix containing the Common Law Procedure Acts of William 4, the recent Statutes on Evidence, and the New Rules framed under the late Acts of 1852 and 1854, and an Introduction. By W. F. FINLASON, Esq., of the Middle Temple, Barrister-at-Law, Author of "Leading Cases on Pleading," Co-Editor of the Common Law Procedure Act of 1852, and Editor of "The Charitable Trusts' Act." London: Stevens & Norton. 1855. Pp. 604.

We can scarcely keep pace with the continued issue of new publications on the Common Law Procedure Acts. Doubtless, Society, when by a grant of copyright, or their great importance justifies the attention patent-right, it grants to the thinker the exclusive use of his thoughts, and the exclusive en- the Bar on the effect of the New Statutes. which is bestowed by several members of joyment of whatever may be the estimate formed by society of their value, grants no The various editions which have been pubmore a monopoly than when it grants a sole lished with notes and commentaries on the

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several enactments, will be useful to practi- plaintiff from the onus of proving the debt, and tioners in taking proceedings under the new himself undertaking to disprove it to their law. We have now before us the work of satisfaction. Mr. Finlason, whose previous labours in expounding other Statutes entitle him to the

favourable consideration of the Profession. The Author observes in his Introduction,

that

"Matters of debt and of mere account being that there was no refuge for dishonesty, no thus summarily disposed of in such a manner means of delay, in other cases not of so pressing a character, and in which the questions must depend upon evidence, oral or written, Common Law first held out every encourageother than that of the parties themselves, the ment to them to arrange the dispute without

"It is written that there is nothing new under the sun; and the history of Common Law procedure illustrates the saying. All that has ever been evil in it has arisen from an ob-resorting to litigation, and in arbitration aflivion of its ancient principles; and every step in its improvement is a recurrence to the past, every real reform is a restoration. This may appear paradoxical to those who have not studied its old records; but the writer finds in them the proof that the paradox is truth.

of matters of fact and law, while for questions forded ample means for voluntary adjudication of law a yet greater facility was afforded for prompt and inexpensive determination; because, by reason of the state of the Profession, in those more simple times, when the client had unrestricted intercourse with his counsel, and the counsel who less practised in a Profession than exercised a vocation-had more familiar intercourse with the Bench, the parties, by their advocates, could come down to Court without ceremony, and put a case' to the Judges, who would debate and decide it without difficulty."

From this primitive state of pleading and practice, Mr. Finlason proceeds to describe the alterations or improvements in the Common Law Courts down to the "reforms," which took place in 1833, under the Common Law Amendment Act of Wm. 4, the consequences of which are thus described :

Nothing could be more practical, more simple, or more just than ancient Common Law Procedure; in substance it contained every element that could adapt it to all the exigencies, or satisfy all the requisitions, even of this commercial age. At the very outset, as respects its process,' a distinction was drawn which all our enlightenment has only just arrived at, after generations of complacent progress the distinction between actions relating to matters of account, or mere money demands, and actions relating to realty. In the former, the process was by attachment and bail, or by summons and arrest; and in the latter by the less peremptory process of summons and distress. Nor was this all; the distinction pervaded the whole course of procedure. Where "The effect of the new system was an enorthe claim was matter of account it was at once mous multiplication of pleas, and a consequent compulsorily referred to auditors (assigned by increase of expense and complication of misi the Court), whose jurisdiction was summary, prius records, which embarrassed the trial of whose investigations were conducted by the causes and led to continual failures of justice, examination of the parties upon oath, and either by special demurrers for faults, of form, whose adjudications had all the effect of the or by defect of evidence on points not the real judgments of the Court. And if the claim, matter in controversy between the parties. although not matter of mere account, was one There was another and perhaps a greater evil of simple debt, which must involve privity of still: that, as there was no power of comcontract, and must rest on credit, and depend pelling parties to submit matters of debt in most instances on the personal communica- or account to speedy adjudication by arbitions of the parties, there was a proceeding tration, one party in such cases was forced called 'wager of law,' in which both the parties to bring an action as his only available rewere examined summarily on oath, and to medy; and yet, when it came down to trial, which if the defendant resorted, while he could the Judge found in numerous cases that by oath purge himself of the claim, that did it was practically impossible to try such matnot suffice unless twelve other men of good ters before a jury, and then at the last hour character attested upon oath to his credibility; both parties, under pressure of expostulaand on the other hand, by resorting to this course, he precluded himself from putting his opponent to the proof of his claim by pleading a denial of it; so that practically it came to this, that the parties themselves were examined upon oath without delay before a jury of twelve persons, the party sued relieving the

1 "Mirror of Justice,' c. 2, s. 6.

2 "Bro. Abr. Account. In matters of account the defendant could not plead a denial of his liability, which was solely for the auditors. 3 Edw. III., 53.

tion from the Bench and persuasion from the Bar, agreed to a reference which might have taken place perhaps 12 months before, and must have taken place had it not been for the desire of one party to delay for which both parties had to pay the penalty in a useless increase of expense."

The following is Mr. Finlason's summary of the improvements effected by the two

3" 14 Edw. III. 3; 8 Hen. IV. 29; 13 Hen. VII. 4; Keil. 39; 13 Hen. VI.; Keil. 41."

Review: Finlason's Common Law Procedure Acts of 1852 and 1854.

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and that he is to be arbitrator, not merely auditor. Arbitrators may state special cases for the opinion of the Court, and Judges may direct special cases on matters of law or issues on matters of fact, without waiting for the consent of the parties, and with such consent the Judge may try questions of fact. The jurisdiction by arbitration is extended by enacting that every agreement or submission to arbitration may be made a rule of Court by either party (and so irreversible and enforceable) unless it contain an express stipulation that it shall not be.

"The Common Law Procedure Act of 1852 lays down its great principle, so far as actions at law are concerned, by declaring that it shall be sufficient if any pleading set forth sufficient ground of action or defence, and that no pleading shall be deemed insufficient for any objection heretofore ground of special demurrer; so that all the formalities recognised by the Acts of Elizabeth and Anne are swept away by the Act of Victoria, which re-affirms the principle asserted under Edward III., that "Among various improvements in our sysby the forms of law no man shall be prejudiced, tem of trial, the most important are a proso that the substance of the action be shown; vision for stamping documents, so as to preand, breaking through all the sophistries and vent parties being defeated by stamp objections, subtleties of Blackstone, recurs to the healthier and a provision for a tribunal of appeal on doctrines of Bracton. As arising out of this motions for new trials. There are some novel elementary principle, another principle is laid and most important provisions with respect to down, that general pleading is sufficient until the obtaining of evidence, power being given the point in dispute is arrived at. And, in to Judges to direct oral examinations of witorder to carry it out, the largest possible power nesses or parties before trial, or to permit the of amendment is allowed so far as necessary to parties to a suit to examine each other on writdetermine in the existing suit the real matter ten interrogatories before trial, so as to obtain in controversy between the parties, without any all the advantages of a bill of discovery; and limit or condition except such as the obvious power is also given to the Judges to allow injustice of the particular case may dictate. And spection of any property the inspection of where this extensive power cannot be applied which may be material to the proper determiprovision is made for preventing, even after nation of the matter in dispute. A procedure verdict, a miscarriage of justice through mis-is provided for attaching the debts of a judgapprehension or mistake. Such were the salutary provisions of the Act of 1852 as respects pleading. But it was not restricted to pleading. Provision was made for trial of questions with out pleading-questions of fact by issue, questions of law by special case; it being also provided that on the finding judgment might be entered for payment of any sum of money, the the right to which the finding resolved. And, for the first time in the history of English law, power was given to sue either British subjects or foreigners residing out of the jurisdiction of the Courts of this country. Nor was this all; some attempt was made towards the attainment, or rather the restoration of speedy adjudication in matters of mere debt or money demand, partly by providing that by means of special indorsement on the writ judgment might be signed thereupon, and partly by facilitating the procedure on judgment by default.

"Such was the ample scope of the Common Law Procedure Act of 1852. But large as it was it was far from doing all that was to be done; the same Commissioners recommended in a second report still further improvements, which, with the warmest judicial and legislative approval, were soon carried out; and this year a second Common Law Procedure Act supplied some defects of the first, and introduced some still more important improvements in our system of civil judicature. Of these the first and perhaps the most important is a practical revival of the ancient procedure in matters of account-a compulsory reference to an arbitrator-the only difference being that he is appointed by the parties instead of by the Court,

ment debtor after the manner of the custom of foreign attachment in the city of London. A plaintiff may, by writ of mandamus, call on the Courts to compel the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested, thus rendering an action at law, as of old, a means of enforcing the performance of any duty, not merely of obtaining pecuniary compensation for its breach. And, on the other hand, a plaintiff may likewise in any action have an injunction against the repetition of the injury for which he sues, thus restoring to the Courts of Law that important department of their jurisdiction which had been usurped by Courts of Equity. And, finally, a great step is made towards that fusion of law and equity which is the grand consummation of legal reformation by providing for the admission of equitable defences in Court of Law.

It is due to Mr. Finlason to quote from his Preface the object he has had in view in presenting his work to the consideration of the Profession. He says,

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notes, all the cases which either have been al ready expressly decided on the first Common Law Procedure Act, or tend to elucidate the provisions of the second. Above all, the edition has been delayed until it could include the

New Rules under the latter Act.

"It is believed that the reader now has in the present edition, all the Statutes, rules, and cases connected with civil common law procedure, and that it will be equally useful for the student and the practitioner, and answer all purposes of a practical manual, whether at nisi prius or in banco.

"The first Common Law Procedure Act of 1852 has now been nearly two years in operation, and the decisions upon it are the best testimonies to its utility. As to the Act of 1854, the Editor believes the opinion of the Profession is very favourable; and as to its composition, the Jurist most truly has observed that it is deserving of high honour on account of its brevity and condensation: We doubt indeed if any Statute effecting such great changes was ever expressed in such few words. And, taken as a whole, we regard it as a mo

DEL ACT.'

The agreement recited that the defendant was justly and truly indebted to the plaintiff in the sum of 2007. for business done and that it had been expressly agreed that as his solicitor, as the defendant admitted, no bill of costs should be required by the defendant, but that the said sum should be fixed to be in lieu and full discharge of all bills of costs and other claims and demands of the plaintiff; and also recited the delivery up of the papers. It then witnessed defendant agreed when and so soon as the that in consideration of the premises the Court of Chancery should declare that he was next of kin and as such entitled to the sums of money, &c., in trust in the above cause, the defendant would pay the plaintiff the sum of 2001. with interest thereon at 5 per cent. from the date of the agreement. The plaintiff covenanted, until the defendant should be so declared next of kin, not

to sue.

In 1849, the right of the defendant's wife was established and the moneys "The Editor may be permitted to state, by were paid over to him in 1853, whereupon way of explanation, that in annotating an untried the plaintiff filed this bill to enforce the Act, the notes must often be in a great degree specific performance of the agreement and rather suggestive than decisive; but he has en- payment of the money thereby secured. deavoured to open up any source of informa- The defendant denied its validity, but oftion likely to be useful for the purpose of exfered to pay what should be found due on position or illustration, whether in the way of principle or analogy." delivery and taxation of the plaintiff's bill of costs.

The notes to the various new enactments are very full and valuable.

The Master of the Rolls said :

"Notwithstanding some difficulty that may arise from the dicta in some of the cases referred to on this subject, I am of opinion that the settlement of a solicitor's bill by the client for a fixed sum is valid, and will not be disturbed by this Court, where it has been entered into fairly and with proper knowledge on both sides. Lord Langdale so decided in the case of In re Whitcombe, 8 Beav. 140; and also held,

Ir appeared that in April, 1836, the defendant employed the plaintiff as his solicitor in respect of a claim in right of his in Re Eyre, 10 Beav. 569, that an agreement wife as next of kin in a cause of Turner v. remunerated, would be properly taken into as to the mode by which a solicitor was to be Maule, but that in the December following consideration by the taxing master, and I have the plaintiff refused to continue to act un-myself acted on this principle in the case of In less supplied with funds. Nothing further re Taylor, which I lately decided.'

was done in the matter and no bill of costs "The case of Exparte Bass, in re Stewas delivered, but it was not denied some-phen, 2 Phill. 562, does not appear to me to thing was due from the defendant to the oppose this view of the case. In that case, a plaintiff. In December, 1844, upon the large sum of money had been paid to solicitors, plaintiff's changing his offices and employ- and under an agreement that this should finally for the purpose of obtaining papers from them, ing the defendant to remove his papers, the settle all matters between them. Lord Cottendefendant's papers were discovered and he ham ordered the bill to be delivered and taxed; demanded them, as he intended to prose-but he did so, not, as it appears to me, on the cute his claim. The plaintiff accordingly, ground that such an agreement could not, on the following day, produced an agree- under any circumstances, be entered into bement, stating he would deliver up the papers upon its being signed, and the defendant executed it, after he had read it and it had been fully explained to him.

tween a solicitor and his client, but on the ground that the agreement in question was, in fact, extorted by pressure. The Lord Chan

1 Feb. 8, 1854.