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said purchases of the several parts thereof, by the said Andrew Millar and John Millan respectively, and before the publication thereof, duly entered in the Register of the Company of Stationers of the city of London, as the whole and sole property of the said Andrew Millar and John Millan; to avoid the appearance of recourse to a statute made in their favour, but now under the ill luck of being thought an impediment. And by the omission of these circumstances, the respondents no doubt intended, for reasons sufficiently obvious, if the foundation of their argument was found, to insist that the species of right to which they set up their claim, was not liable to a supposition that the author had relinquished the copy, and consequently given a general licence to print. They denied that many of the best books fell under that description, and that a very little evidence might be sufficient, after the author's death, to imply such a tacit consent; as, if the book had not been entered before publication, it would be a circumstance to be submitted to a jury, that the copy was intended to be left open. In fact Mr. Thomson, their author, died in 1748, and they disregarded the rest of the inference; but had they admitted the circumstance above stated to be material to themselves, it would have been equally so to the author, who likewise omitted to enter his poems in the Stationer's Register. For the same reason the respondents had not pretended, that from the time of the said two several purchases, Andrew Millar and John Millan, and the executors of the former, and their assigns, had printed and sold the said works as their property, and constantly had a sufficient number of books exposed to sale at a reasonable price. To their unbounded claim of property it was certainly repugnant, that the owner should be obliged to part with it at any price, but that which he sets himself. Nor would they admit that their relief might be rebutted, by shewing that they meant to enhance the price, which is against law. The statutes of [133] 1 Rich. III. and 25 Hen. VIII. relate to the importation of books from foreign parts, and extend in no case to property or privilege; and the price of books has nothing to do with ingrossing, forestalling, regrating, or any other offences against the police of a public market. The respondents had likewise forborn to charge, that before the reign of Queen Ann, it was usual to purchase from authors the perpetual copy right of their books, and to assign from hand to hand for valuable considerations, and to make the same subject to family settlements, for the provision of wives and children; as judging perhaps, that if such a property had always existed at common law, the purposes to which it had been applied would be perfectly immaterial; and if it did not exist, the application of it to family interests, would not be a sufficient ground to build up a new and unheard of property; perhaps conceiving, that what was done among others, would not be received as evidence in the Court of Chancery; and perhaps convinced, that no such usage could be proved, or that such usage, if stated in all its circumstances, would be seen advantageous to booksellers only, and not to authors, and upon the whole might turn out just so much of nothing to their purpose. They had likewise avoided to charge any supposed bye-laws of the Stationers Company; aware, perhaps, that such bye-laws would imply a special right created by themselves, and extending only to their own mombers; perhaps considering, that the appellants, not being members of that company, would not be affected by such bye-laws, even to the extent of making them competent evidence; and perhaps apprehending, that such bye-laws would throw a light upon the imaginary usage above-mentioned, and by revealing the origin, nature, and extent of the property contended for, point the force of it against their own argument.

The question therefore before the Court of Chancery stood in this simple form; Whether the author having sold and delivered, for a competent price, one, or five hundred true copies of his work, retains in each of the copies so sold and delivered, by the true construction of such contract, the mere and absolute dominion and property, conveying to the vendee no more than a special limited use thereof; or è converso, whether such vendee, or rather bailleé, acquires, by the true construction of the contract of sale and delivery, no absolute property to himself, but only a right of using, to a certain extent, the property of another? If this proposition be maintainable by the respondents, the consequence insisted upon is, that, in respect to the property so retained, the mere and absolute owner, viz. the person who has sold, may maintain an action for the exclusive use of it by the bailleé, viz. the buyer. But to avoid the difficulty of making out the whole of the idea, some have taken part of it, and they