from breach of rules. the owner of the ship by which such rule is infringed Collision cannot recover compensation for damages sustained by the ship in such collision, unless it appears that the circumstances of the case made a departure from the rule necessary. Breaches of such rules willful 972. Damage to person or property arising from the failure of a ship to observe any rule of Section to imply 970, must be deemed to have been occasioned by the default. willful default of the person in charge of the deck of such ship at the time, unless it appears that the circumstances of the case made a departure from the rule necessary. 973. Losses caused by collision are to be borne as Loss, how follows: 1. If either party was exclusively in fault he must bear his own loss, and compensate the other for any loss he has sustained; 2. If neither was in fault, the loss must be borne by him on whom it falls; 3. If both were in fault, the loss is to be equally divided, unless it appears that there was a great disparity in fault, in which case the loss must be equitably apportioned; 4. If it cannot be ascertained where the fault lies, the loss must be equally divided. NOTE.-First Subdivision. The Scioto, Daveis, p. 359; The Woodrop-Sims, 2 Dods., p. 83; The Sappho, 9 Jur., p. 560; Reeves vs. The Constitution, Gilpin, p. 579; Kelly vs. Cunningham, 1 Cal., p. 365; Innis vs. Steamer Senator, 1 Cal., p. 456. Second Subdivision. The Woodrop-Sims, supra; Stainback vs. Rae, 14 How. (U.S.), p. 532; The Itinerant, 2 W. Rob., p. 236. Third Subdivision. This is the rule in Admiralty Courts.Cushing vs. The Fraser, 21 How. (U. S.), p. 184; Rogers vs. The St. Charles, 19 id., p. 108; The Catharine vs. Dickinson, 17 id., p. 177; Vaux vs. Sheffer, 8 Moore P. C., p. 75. It is otherwise at common law.-Dowell vs. Gen. St. N. Co., 5 El. & Bl., p. 195; Gen. St. N. apportioned. Co. vs. Mann, 14 C. B., p. 127; see Barnes vs. Cole, 21 Wend., p. 188. In Griswold vs. Sharpe, 2 Cal., p. 17, it was held that the plaintiff must be faultless. Fourth Subdivision. The Scioto, Daveis, p. 359; The Catharine of Dover, 2 Hagg. Adm., p. 145; Lucas vs. The Swann, 6 M'Lean, p. 282; The Nautilus, Ware, p. 529. How far the subject of ownership. Joint CHAPTER III. PRODUCTS OF THE MIND. SECTION 980. How far the subject of ownership. 981. Joint authorship. 982. Transfer. 983. Effect of publication. 984. Subsequent inventor, author, etc. 980. The author of any product of the mind, whether it is an invention, or a composition in letters or art, or a design, with or without delineation, or other graphical representation, has an exclusive ownership therein, and in the representation or expression thereof, which continues so long as the product and the representations or expressions thereof made by him remain in his possession. 981. Unless otherwise agreed, a product of the authorship. mind in the production of which several persons are jointly concerned, is owned by them as follows: Transfer. Effect of publication 1. If the product is single, in equal proportions; 2. If it is not single, in proportion to the contribution of each. 982. The owner of any product of the mind, or of any representation or expression thereof, may transfer his property in the same. 983. If the owner of a product of the mind intentionally makes it public, a copy or reproduction may be made public by any person, without responsibility to the owner, so far as the law of this State is concerned. NOTE.-The protection afforded by Act of Congress is a matter of Federal legislation, with which the State inventor, author, etc. 984. If the owner of a product of the mind does Subsequent not make it public, any other person subsequently and originally producing the same thing has the same right therein as the prior author, which is exclusive to the same extent against all persons except the prior author, or those claiming under him. writings. 985. Letters and other private communications in Private writing belong to the person to whom they are addressed and delivered; but they cannot be published against the will of the writer, except by authority of law. NOTE.-Woolsey vs. Judd, 4 Duer, p. 389; Eyre vs. CHAPTER IV. OTHER KINDS OF PERSONAL PROPERTY. SECTION 991. Trade marks and signs. 992. Good will of business. 993. Same. 994. Title deeds. marks and 991. One who produces or deals in a particular Trade NOTE.-Deals in-Taylor vs. Carpenter, 1 Sandf. p. 725; designation-Amoskeag Manufacturing Co. vs. Spear, 2 Sandf., p. 599; Fetridge vs. Wells, 4 Abb. Pr., p. 144. The right of property is recognized by the common law in a trade mark (Derringer vs. Platt, 29 Cal., p. 292), and the right is not limited by territorial bounds, but may be asserted wherever the common law affords remedies for wrongs, subject to such statutory regulations as may be made concerning the use and enjoyment of other property.-Id. The statute of eighteen hundred and sixty-three concerning trade marks did not take away the common law remedy for the protection of the same from those who did not register their trade mark according to its provisions.-Id. The name established for a hotel is a trade mark.-Woodward vs. Lasar, 21 Cal., p. 448. The name "Original What Cheer House," the word "Original" being painted on the sign in small letters, and in a manner calculated to deceive the public, is an invasion of the trade mark "What Cheer House."-Id. In Lucy vs. Falkinburg, 35 Cal., p. 52, the law relative to trade marks is ably and elaborately considered by Sanderson and Sawyer, Justices. The following are the provisions of the Political Code in relation to trade marks: SEC. 3196. The phrase "trade mark," as used in this Chapter, includes every description of word, letter, device, emblem, stamp, imprint, brand, printed ticket, label, or wrapper usually affixed by any mechanic, manufacturer, druggist, merchant, or tradesman, to denote any goods to be goods imported, manufactured, produced, compounded, or sold by him, other than any name, word, or expression generally denoting any goods to be of some particular class or description.-26 Vict., Chap. 88, Sec. 1. SEC. 3197. Any person may secure the exclusive use of any such trade mark or name by filing with the Secretary of State his claim to the same, and a copy or description of such trade mark or name, with his affidavit attached thereto, certified to by any officer authorized to take acknowledgments of conveyances, setting forth that he (or the firm or corporation of which he is a member) is the exclusive owner or agent of the owner of such trade mark or name.-Stats. 1863, p. 155. SEC. 3198. The Secretary of State must keep for public examination a record of all trade marks or names filed in his office, with the date when filed and name of claimant, and must at the time of filing collect from such claimant a fee of five dollars in gold coin, to be paid into the State Library Fund.-Stats. 1863, p. 155. SEC. 3199. Any person who has first adopted, recorded, and used a trade mark or name, whether within or beyond the limits of this State, is its original owner. Such ownership may be transferred in the same manner as personal property, and is entitled to the same protection by suits at law; and any Court of competent jurisdiction may restrain, by injunction, any use of trade marks or names in violation of this Chapter.Stats. 1863, p. 155. For the provisions punishing counterfeiting of trade marks, and concerning evidence on trials therefor, see Penal Code, Secs. 350 to 354, inclusive. of business. 992. The good will of a business is the expectation Good will of continued public patronage, but it does not include a right to use the name of any person from whom it was acquired. NOTE.-Good will is the advantage or benefit which is acquired by an establishment beyond the mere value of the capital, stocks, funds, or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of its local position, or common celebrity, or reputation for skill, affluence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices.-Story on Partnership, Sec. 99; Harrison vs. Gardner, 2 Madd., p. 198; Bell vs. Ellis, 33 Cal., p. 620; Howe vs. Searing, 6 Bosw., p. 354. 993. The good will of a business is property, trans- Same. ferable like any other. NOTE.-The good will of a trade is part of the partnership property.-Bell vs. Ellis, 33 Cal., p. 620; Williams vs. Wilson, 4 Sandf. Ch., p. 379. In Farr vs. Pearce, 3 Madd., p. 79, a distinction is taken between professional partnerships, in which the pecuniary value of the good will was recognized, and commercial partnerships, in which it was intimated that the rule might be different, but Mr. Parsons doubts the value of the distinction.-1 Parsons on Contracts, p. 154. 994. Instruments essential to the title of real prop- Title deeds. erty, and which are not kept in a public office as a record, pursuant to law, belong to the person in whom, for the time being, such title may be vested, and pass with the title. |