excise licence for this latter purpose (u). There are also many penal provisions intended for the better preservation of game (x), and for the protection of the landowner from poaching (whether by night or otherwise), and generally from unlawful trespasses in sporting (y). It is to be remarked, that, under these Acts, "game" is defined as including hares, pheasants, partridges, grouse, heath or moor game, black game and bustards (); though some of their provisions are also directed to deer, woodcocks, snipes, quails, landrails, and rabbits (a). With regard to hares, there are also some special provisions contained in 11 & 12 Vict. c. 29, and 23 & 24 Vict. c. 90, it being provided therein that, in the absence of special agreement to a contrary effect, any occupier of inclosed lands, or any owner thereof with the right of killing game thereon,-may kill hares on such land, without an excise licence; and that such licence need not in any case be obtained by one who pursues hares with greyhounds, beagles or other hounds (¿). Nor need any licence be obtained by a person who is merely assisting another in the pursuit of game (whether hares or any other species) which his employer is duly licensed to kill (c). Also, by the Ground Game Act (43 & 44 Vict. c. 47), the right of the occupier to kill ground game (scil. hares and rabbits) concurrently with the landowner or other person entitled under him to such game is made a right inseparable from his occupation, and he cannot contract himself out of the Act; and the occupier is exempt (u) 1 & 2 Will. 4, c. 32, s. 25; 23 & 24 Vict. c. 90, s. 14. And see 24 & 25 Vict. c. 91, s. 17. (x) 1 & 2 Will. 4, c. 32, ss. 3, 4, 24. (See Saunders v. Baldy, Law Rep., 1 Q. B. 87.) As to poaching, see also 25 & 26 Vict. c. 114; Brown v. Turner, 13 C. B., N. S. 485; Evans v. Botterill, 3 B. & Smith, 787; Hall . Knox, 4 B. & Smith, 515. (y) 1 & 2 Will. 4, c. 32, s. 30 et seq. As to these provisions, see The Queen v. Pratt, 4 Ell. & Bl. 860; Osbond. Meadows, 12 C. B., N. S. 10; Spicer v. Barnard, 1 E. & E. 748; Cornwell . Sanders, 3 B. & Smith, 206. (-) 1 & 2 Will. 4, c. 32, s. 2. (b) 11 & 12 Vict. c. 29, s. 5. from the necessity of procuring any licence to kill such game. As to the law regulative of the pursuit of animals in the chase (the ordinary means of acquiring them by occupancy), certain distinctions have been laid down (d). If a man starts any such animal on his own ground, and follows it into another's, and kills it there, the property remains in himself (e); but if (being a trespasser) he starts it on another's land, and kills it there, the property belongs to him in whose ground it was killed (f); and this, even though the trespasser may have sold the dead game to a third person (g). Again, if it be started by a stranger in one man's chase or free warren, and hunted into another liberty, the property (it is said) continues in the owner of the chase or warren (h). These distinctions seem to show, that in general the property is acquired by the seizure or occupancy, though that cannot prevail against the better claim of him in whose grounds the animal is both killed and started (and who therefore may be said to be entitled ratione soli); or of him who has already a qualified property in it, ratione privilegii. 3. [The doctrine of property arising from accession is also grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterwards an accession by natural or by artificial means,-as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils,-the original owner of the thing was entitled to the property of it under such its state of improvement (i); but if the thing itself by such operation (d) See 2 Bl. Com. 419. (e) See Keble v. Hickringill, 11 Mod. 75; Sutton r. Moody, Lord Raym. 251; 12 Mod. 145; 2 Salk. 556; 3 Salk. 290; Comb. 458. (f) Sutton v. Moody, ubi sup. (g) See Blades v. Higgs, 11 H. of L. Cas. 621. (h) See Sutton v. Moody, ubi sup.; Churchward v. Studdy, 14 East, 249. (i) Inst. 2, 1, 25, 26, 31; Ff. 6, [was changed into a different species,—as by making wine, oil or bread out of another's grapes, olives or wheat,-it belonged to the new operator, who was only to make a satisfaction to the former proprietor for the materials which he had so converted (j). And these doctrines are implicitly copied and adopted by our Bracton (k), and have since been confirmed by many resolutions of the courts (7). With respect to accession by breeding from animals, in particular, it has been held, that of all tame and domestic animals the brood belongs to the owner of the dam or mother; the English law thus agreeing with the civil, that partus sequitur ventrem in the brute creation, though for the most part, in the human species, it disallows that maxim. And therefore in the laws of England (m) as well as of Rome (n), “si equam meam equus tuus prægnantem fecerit, non est tuum sed meum quod natum est." And for this Puffendorf gives a sensible reason (0), not only because the male is frequently unknown, but also because the dam, during the time of her pregnancy, is almost wholly useless to the proprietor, and must be maintained with greater expense and care: wherefore, as the owner is a loser by her pregnancy, he ought to be the gainer by her brood. An exception to this rule obtains in the case of swans, for the young cygnets belong equally to the respective owners of the cock and hen bird (p). But here the reason of the general rule ceases, and cessante ratione cessat et ipsa lex; for the male is well known by his constant association with the female; and for the same reason, the owner of the one doth not suffer more disadvantage during the time of pregnancy and nurture, than the owner of the other (q). 4. To the same general head belongs also the case of (j) Inst. 2, 1. (k) L. 2, c. 2. (1) See Year Books, 5 Hen. 7, 15; 12 Hen. 8, 10; Bro. Ab. Propertie, 23; Moore, 20; Popham, 38. (m) Bro. Ab. Propertie, 29. (n) Ff. 6, 1, 5. (0) De J. N. & G. 1. 4, c. 7. [confusion of goods: which arises where those of two persons become so intermixed that the several portions can be no longer distinguished; and here the English law partly agrees with and partly differs from the civil. If the intermixture be by consent, it seems that, in both laws, the proprietors have an interest in common, in proportion to their respective shares (). But if a man should wilfully intermix his money, corn or hay, with that of another man, without his approbation or knowledge; or cast gold, in like manner, into another's melting-pot or crucible; the civil law, though it gave the sole property of the whole to him who had not interfered with the mixture, yet allowed a satisfaction to the other, for what he so improvidently lost. But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavoured to be rendered uncertain, without his own consent (s).] It is to be observed, however, that this rule applies only to cases where the confusion is such, as to create a difficulty in the subsequent apportionment of the respective shares. For if the goods continue to be distinguishable, as in the instance of articles of furniture thrown together, the confusion makes no alteration in the property (t). And the case is the same where the quality of the articles is uniform, and the original quantities known; for under such circumstances the party by whose act the confusion took place, would still be entitled (as it seems) to claim his proper quantity ("). (r) Inst. 2, 1, 27, 28; 2 Bl. Com. 405. See the observations of the court in Buckley v. Gross, 3 B. & Smith, 566. (s) See Ward v. Ayre, Cro. Jac. 366; 2 Bulst. 323, S. C.; Poph. 38; 1 Hale, P. C. 513; Colwill v. Reeves, 2 Camp. 576. (t) Colwill v. Reeves, ubi sup. (u) 2 Kent's Com. 298; Lupton v. White, 15 Ves. 442. CHAPTER III. OF TITLE BY INVENTION. It was noticed in a former chapter, that there are a sort of chattels that may be termed incorporeal, and that among these are to be included patent rights and copyrights (a). To these, as very important in their character, we now propose to refer with greater particularity; and as they both are founded on the same title, viz. that of invention, or the original conception of genius, they may with propriety be considered together, within the compass of the same chapter. I. By a "patent right" we are to understand a privilege granted by the crown to the first inventor of any new contrivance in the manufactures, that he alone shall be entitled, during a limited period, to benefit by his own invention. It is so called, because the instrument, by which it is bestowed, is always in the form of letterspatent, which is the established mode of royal grant (b). To confer, indeed, on any individual the exclusive right of carrying on a particular trade or manufacture is, in general, beyond the lawful bounds of the royal prerogative. Such a grant amounted, at common law, to what was termed a monopoly (c); and was declared by the Statute of Monopolies, 21 Jac. I. c. 3, to be "altogether "contrary to the laws of this realm." But an exception. was always made in favour of inventors of new manufac (a) Vide sup. p. 8. (b) As to royal grants in general, vide sup. vol. 1. p. 621; post, bk. v. C. XV. (c) 3 Inst. 181; et vide post, bk VI. C. XI |