Page:The English Reports v1 1900.pdf/863

tion of the said statute, and on the terms and conditions prescribed thereby? IV. Whether the author of any literary composition, and his assigns, had the sole right of printing and publishing the same in perpetuity by the common law? V. Whether this right is any way impeached, restrained, or taken away by the statute 8th Ann?

The judges differing among themselves, delivered their opinions seriatim; when five of them, namely, Mr. Justice Ashhurst, Mr. Justice Blackstone, Mr. Justice Willes, Mr. Justice Aston, and the Lord Chief Baron of the Court of Exchequer, were of opinion in favour of the perpetuity, or common law right; and the other six, namely, Mr. Baron Eyre, Mr. Justice Nares, Mr. Baron Perrott, Mr. Justice Gould, Mr. Baron Adams, and the Lord Chief Justice of the Court of Common Pleas, were of opinion against it whereupon it was ordered and adjudged, that the decree complained of should be reversed; and that the respondents bill should be dismissed, without costs. (MS. Jour. sub anno 1774. p. 130.) (See note 2, p. 849.)

Note 1.—[131] After thus stating the facts of the case now in judgment, the appellants, previous to assigning any reasons in support of their appeal, made the following observations:

[132] On this state of the case they said it was observable, that the respondents derived a title through executors, eo nomine; and not by means of any specific devise to them. From hence it was conjectured, that they meant to claim some chattel or other, and to complain of a wrong done to that species of property. Of chattels, it is certain that they all go absolutely to executors, together with all the rights which can exist in them. The case is the same of rights purely incorporeal, which lie only in action, and are independent of any subject, real or personal, if they are for terms of years, as an annuity, a franchise, or a privilege, such as monopolies, etc. for a limited time. But it was conceived that a perpetual annuity, franchise, or privilege, must be a fee simple, and descend to heirs. If this be so, the main difficulty would then consist in ascertaining the chattel claimed by the respondents, and how, and in what manner, the wrong complained of applied to it.

The bill in this cause was penned by the respondents with extreme caution, solicitous, as it should seem, to avoid entangling themselves in a variety of circumstances, which yet make part of the special verdict in the cause of Millar v. Taylor, and in the report of Sir James Burrow (vol. 4. p. 2303) are stated to be highly material, although in support of that opinion no reason is alledged. It might therefore be inferred, that the present attempt was an experiment, to try how far the doctrine of that case may be extended beyond the case itself. What was done with the poems in question, between the time of their being first written and the 16th of January, or the 28th of July 1729, when the copies were sold, did not appear in any part of these proceedings. The respondents had not thought fit, in support of their claim, to alledge, that the author had neither published, sold, or given true copies of them to other persons before those particular days; indeed such an allegation could not have been made with truth, because it was notorious that they were published at separate and distinct times, as they happened to be written. The Seasons, in particular, were found by the special verdict in the cause of Millar v. Taylor, to have been published in the year 1727, at several times, between the beginning of that year and the end of the year 1729, and of course many true copies of them were sold to various persons, before the purchase by Andrew Millar and John Millan, supposed by the bill. But it was immaterial to the present claim, in what manner, or with what view the author published originally, since if any property adhered to him after, and notwithstanding his first publication, the same, without any manner of doubt, was disposable by him at his pleasure. Upon the same principle the respondents had industriously declined to charge, that the said James Thomson was a natural-born subject, or resident in that part of Great Britain called England; or that the poems in question were first printed and published in the city of London, the same having never before been published elsewhere; meaning apparently to insist, that the right which they claimed, being derived from property, could not depend for its existence on such accidents; and that, therefore, this case had to do with that of foreign books, which do not, in their apprehension, stand on a different footing from copies printed and published in the city of London. The respondents had, for the same reasons, declined to charge, if the truth was so, that the work now in question, was upon the