the law of this country, any assignable copyright here in this musical composition. Per Lords Brougham and St. Leonards. Copyright did not exist at Common Law: it is the creature of Statute. Per Lord St. Leonards. No assignment of copyright under 8 Anne, c. 19, the benefit of which is claimed by the assignee, although from a foreigner, can be good in this country, unless it is attested by two witnesses. Per Lord St. Leonards. There cannot be a partial assignment of copyright (y). DLXXXB. But in the subsequent case of Routledge v. Low, Lord Cairns and Westbury expressed dissent from this construction of 8 Anne, c. 19, and intimated a doubt whether the case of Jeffreys v. Boosey would in any case be binding upon the House of Lords in the construction of the Modern Copyright Act (5 & 6 Vict. c. 45). In Routledge v. Low, it was holden that an alien friend who, during the time of his temporary residence in a British colony, publishes, in the United Kingdom, a book of which he is the author, is, under 5 & 6 Vict. c. 45, entitled to the benefit of English copyright (z). DLXXXc. (III.) (a) The cases decided in the English Courts on the subject of the piracy of foreign trade-marks, (y) Jeffreys v. Boosey (a. d. 1854), 4 House of Lords Reports, p. 815. In favour of Foreigner's foreign assignee's right to an assignable (z) Routledge v. Low (1868), 3 L. R. H. L. p. 100; 37 L. J. (Chanc.) p. 454. (a) This and the next section were §§ dxciii, dxciv. of the old edition. Lord Chancellor Cranworth. St. Leonards. show a greater regard for Comity than the decisions of the French tribunals (b). In a recent case an alien ami manufactured, in his own country, goods, which he distinguished by a peculiar trademark. The goods obtained considerable reputation both in his own country and in various other foreign countries, and also in some British colonies; but it was not shown that any of such goods had ever been even introduced or imported into England. The defendant was in the habit of manufacturing in and selling in this country, goods similar in appearance, and with an exact copy of the plaintiff's peculiar trade-mark. Some of these imitative articles were sold and used abroad in countries where the alien ami's goods had obtained a reputation (c). It was holden by the Court, that he was entitled to an injunction restraining the defendant from copying or imitating the trade-mark. The doctrine seems to have been laid down in this case, that a man has no property in a trade-mark, but he has a right to prevent anybody else from using it, so as to attract custom which otherwise would flow to himself. Also that a person on whom an injury is fraudulently committed may have a remedy in the Court of any country where the fraud occurs, and even although he be at the time an alien enemy (d). DLXXXD. In an important case on this subject a bill was filed by an American trading company, incorporated by the Law of the State of Connecticut, in the United States of America, for an injunction to restrain a manufacturer of Birmingham from continuing the fraudulent use of the trade-marks of the company, and for an account of the profits made by him from such use. He, by his answer, admitted the use of the trade-marks complained of; but, by (b) See a remarkable case, The Emperor of Austria v. Day and Kossuth, 2 Giff. Rep. p. 628, referred to in vol. ii. of this work, p. 145, § cxiii. (A). (c) Collins Company v. Brown; Same v. Cohen (1857), 3 Kay & Johnson's Rep. 423. (d) Same v. Reeves (V.-C. Stuart, 1859), 28 Law Journal (Chanc.), 56. way of rebuttal of the charge of fraud, stated that, in so using the trade-marks, he had only followed a custom prevalent at Birmingham for manufacturers of goods of the kind sold by the company, to affix on the goods ordered by merchants a particular trade-mark, relying on the respectability of the merchant, when known to them, for the fact that those merchants had authority to act as agents of, or by way of license from, the person entitled to the exclusive use of the trade-marks; and that he had been informed that the company themselves had ordered goods to be manufactured at Birmingham, with their own trade-mark upon them, for the purpose of sale in foreign countries. These statements were left uncontradicted by the company. The Court, upon motion for decree, ordered that an interim injunction, which the defendant had previously submitted to, should be continued for a year, with liberty to the company to bring an action within that time to try their right at law; and in case of their not proceeding at law and to trial within that time, that their bill should thereupon stand dismissed with costs. DLXXXE. Mr. Wharton (e) observes, that "In Eng"land and the United States, it is needless to say, the "counterfeiting of any trade-mark, with intent to defraud a "vendee, is indictable as a cheat at common law. The dis"tinction between the intent to defraud the vendee, and that "to defraud the manufacturer, seems overlooked by both Bar "and Fœlix. When a vendee is defrauded by imposing on him an inferior article on a forged brand or stamp, he can prosecute criminally the offender, though no civil action may lie in favour of the foreign manufacturer whose trade"mark is counterfeited." 66 66 (e) §§ 326, 327. The United States and Belgium have a treaty on this subject. CHAPTER XXVIII. ACQUISITION AND ALIENATION OF MOVEABLE AND IMMOVEABLE PROPERTY. CAPACITY TO ACQUIRE OR TO ALIENATE. DLXXXI. HAVING considered in what the nature of moveable and immoveable property consists, and by what laws it is determined, we now approach the consideration of the rules of Private International Law with respect to the acquisition and the alienation of Property by Foreigners. DLXXXII. As it is an incident to the Sovereign Power of every independent State to have authority over all persons residing or being within its borders, so it is an incident to the same power to have authority over all things or property of every description within its borders. The Laws of each State, therefore, govern the whole property of individuals, whether they be Natives or Foreigners. But the same Comity which, in the application of the Law, distinguishes for some purposes between the persons of Natives and Foreigners, makes a distinction both as to their capacity to acquire property, and also as to the form and manner of its acquisition or alienation. DLXXXIII. The following summary of the opinions of jurists upon this important point is, it is believed, correct:1. There are those beginning with Huber (a), and ending (a) S. 12. with Savigny (b), who hold that this capacity to acquire or alienate is governed by the Law of the Domicil of the acquirer or alienator. 2. There are those who hold that this capacity does not belong to the qualities of the person, as such, but to the legal working or effect of these qualities, and, therefore, that the lex fori, before which the matter is adjudicated upon, and not the Law of the Domicil, should be applied. In 3. Those who hold, with Story for their principal exponent, that, generally speaking, the Law of the Domicil should be applied, but not in the case of immoveables. this case, the lex rei sitæ, or the Statutum reale, must govern-a position emphatically condemned by Savigny. But those who maintain the first opinion admit the following exceptions (c): a. Where the capacity to acquire or alienate is forbidden by the Law in which the property is situated. B. Where it is doubtful whether the property be or be not among the res quorum commercium non est, the lex rei sitæ is to prevail. 7. Where a question arises as to property without an owner, bona vacantia, as to whether the particular property can be acquired by occupatio. For instance, jura regalia-rights of the Crown and Government-such as mines, minerals, treasure trove, or amber, in the kingdom of Prussia. In such cases it is admitted that not only ought the lex rei sita to prevail, but that the property acquirel under such a title ought to be recognised by all other States. DLXXXIV. Having considered what Law governs the capacity to acquire and to alienate property, we ought, perhaps, to inquire, in the next place, what Law governs the form and manner of acquisition and alienation. And this inquiry would lead us to an examination— (b) VIII. s. 357, 11. See also Wharton, § 329. |