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"copyright" and the phrase "literary property" are not generally considered to be synonymous. The latter phrase has a more general signification than copyright and includes both the right which the producer of an intellectual production has therein by the common law,22 and the right which he may obtain under the copyright statutes; it is a general term which describes the interest of an author or

proprietor in an intellectual product, whether before or after publication, or before or after copyright.23 It is not confined to productions of a literary nature in the strict sense, 24 but includes as well mere compilations of facts,25 such as credit ratings,26 or quotations made on a stock exchange,27 and the creations of an artist, sculptor, photographer, and architect.2

28

II. COMMON-LAW RIGHTS

his consent.29 The right still exists, independent of all statutes concerning copyrights,30 although, in the United States, this common-law right for a long time has been recognized and continued in force by express provision in the copyright acts.31 In England, by the Copyright Act of 1911, the common-law.

[4] A. Property Rights Generally-1. In General. An author has, at common law, a property in his intellectual production before it has been published, and may obtain redress against anyone who deprives him of it, or, by improperly obtaining a copy, endeavors to publish or to use it without dential. Such communications are 5 Fed. 726, 10 Biss. 139; Boucicault v. effected by reciting or audibly reading the composition, or by circulating it. The recitation, or lecture or circulation, may be private or public." Keene v. Wheatley, 14 F. Cas. No. 7,644. of

[b] Antiquity right. "The recognition of the doctrine of a distinctive literary property has existed from very early times. 2 Lewis' Blackstone, 407. The senate of the republic of Venice in 1469 granted to one John of Spira the exclusive privilege for five years of printing the letters of Cicero and Pliny. Two Centuries Growth of American Law, 422." Werckmeister American Lith. Co., 134 Fed. 321, 324, 69 CCA 553, 68 LRA 591 [rev 126 Fed. 244]. 22. See supra § 2; and infra §§ 5-8.

V.

[a] Literary property limited to the common-law right. It has been said that literary property is the common-law ownership of the original work; copyright is the statutory right to make all the copies of it that shall be made for a term of years. 1 Abbott L. D. p 288. [b] "Copyright' signifies an exclusive right of an author and his assigns to print his literary composition, and publish and republish it in print." The term is narrower than the words "literary property.' Keene v. Wheatley, 14 F. Cas. No. 7,644.

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[a] Oil painting.-Literary property exists in an oil painting. Oertel v. Wood, 40 HowPr (N. Y.) 10.

30

29. U. S.-Caliga v. Inter-Ocean Newspaper Co.. 215 U. S. 182, SCt 38, 54 L. ed. 150 [aff 157 Fed. 186, 84 CCA 634]; Bobbs-Merrill Co. v. Straus, 210 U. S. 339. 28 SCt 722. 52 L. ed. 1086; American Tobacco Co. v. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595; Holmes v. Hurst, 174 U. S. 82, 19 SCt 606. 43 L. ed. 904; Little v. Hall, 18 How. 165, 15 L. ed. 328; Wheaton v. Peters, 8 Pet. 591. 8 L. ed. 1055; Harms v. Stern, 229 Fed. 42, 49, 145 CCA 2 [cit Cycl; Harper v. Donohue, 144 Fed. 491 [aff 146 Fed. 1023 mem, 76 CCA 678 mem]; Werckmeister v. American Lith. Co.. 134 Fed. 321, 69 CCA 553. 68 LRA 591 [rev 126 Fed. 244]; National Tel. News Co. v. Western Union Tel. Co., 119 Fed. 294, 56 CCA 198. 60 LRA 805; Press Pub. Co. v. Monroe. 73 Fed. 196, 19 CCA 429, 51 LRA 353 [app dism 164 U. S. 105, 17 SCt 40, 41 L. ed. 367]; Mark Twain Case. 14 Fed. 728, 11 Biss. 459; Myers v. Callaghan,

Fox, 3 F. Cas. No. 1,691, 5 Blatchf. 87; Boucicault v. Wood, 3 F. Cas. No. 1,693, 2 Biss. 34; Crowe v. Aiken, 6 F. Cas. No. 3,441, 2 Biss. 208; Keene v. Wheatley, 14 F. Cas. No. 7.644, 4 Phila. (Pa.) 157; Roberts v. Myers, 20 F. Cas. No. 11,906, Brunn. Coll. Cas. 698; Stowe v. Thomas, 23 F. Cas. No. 13,514, 2 Wall. Jr. 547. Ill-Frohman V. Ferris, 238 Ill. 87 NE 327, 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492]; Rees v. Peltzer, 75 Ill. 475; Ockenholdt v. Frohman, 60 111. A. 300.

430,

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Nebr.-State v. State Journal Co., 77 Nebr. 752, 110 NW 763 [den reh 75 Nebr. 275. 106 NW 434, 9 LRANS 174, 13 AnnCas 254].

N. J.-New Jersey State Dental Soc. v. Dentacura Co., 57 N. J. Eq. 593, 41 A 672 [aff 58 N. J. Eq. 582 mem, 43 A 1098 mem]; Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177 ("Erminie").

N. Y.-Palmer v. De Witt, 47 N. Y. 532, 7 AmR 480; Isaacs v. Daly, 39 N. Y. Super. 511; Palmer v. De Witt, 30 N. Y. Super. 530, 36 HowPr 222, 5 AbbPrNS 130; Woolsey v. Judd, 11 N. Y. Super. 379, 11 HowPr 49; Taft v. Smith, 76 Misc. 283, 134 NYS 1011; Stern v. Carl Laemmle Music Co., 74 Misc. 262, 133 NYS 1082 [aff 155 App. Div. 895 mem, 139 NYS 1146 mem]; French v. Maguire, 55 HowPr 471; Kiernan v. Manhattan Quotation Tel. Co., 50 HowPr 194; Shook v. Daly, 49 How Pr 366; Oertel v. Wood, 40 HowPr 10; Jones V. Thorne, 1 NYLegObs 408; French v. Conelly, 1 NYWkly Dig 197.

S. D.-Simmons Hardware Co. v. Waibel, 1 S. D. 488, 47 NW 814, 36 AmSR 755, 11 LRA 267.

Tex. Vernon Abstract Co. v. Waggoner Title Co., 49 Tex. Civ. A. 144, 107 SW 919.

Eng.-Caird v. Sime, 12 App. Cas. 326; Exchange Tel. Co. v. Gregory, [1896] 1 Q. B. 147; Mansell v. Valley Printing Co., [1908] 2 Ch. 441, 1 BRC 187, 15 AnnCas 133; Exchange Tel. Co. v. Central News, [1897] 2 Ch. 48; Macklin v. Richardson, Ambl. 694, 27 Reprint 451, 7 ERC 66; Pope v. Curl, 2 Atk. 342, 26 Reprint 608; White v. Geroch, 2 B. & Ald. 298, 106 Reprint 376; Donaldson v. Beckett, 2 Bro. P. C. 129, 1 Reprint 837 [cit Millar v. Taylor, 4 Burr. 2303, 2408, 98 Reprint 2011; Millar V. Taylor, supra; Webb v. Rose [cit❘ Millar v. Taylor, supra]; Manley v. Owen [cit Millar v. Taylor, supra]; Prince Albert v. Strange, 2 De G. & Sm. 652, 64 Reprint 293. 1 Hall & T. 1, 47 Reprint 1302, 1 Macn. & G. 25, 47 EngCh 19, 41 Reprint 1171: Queensberry v. Shebbeare, 2 Eden 329. 28 Reprint 924; Jefferys V. Boosey. 4 H. L. Cas. 815, 10 Reprint 681; Turner V. Robinson, 10 Ir. Ch. 510 [aff 10 Ir. Ch. 121];

Fisher v. Folds, 1 Jones Exch. 12; Southey v. Sherwood. 2 Merw. 435, 35 Reprint 1006; Exchange Tel. Co., Ltd. v. Howard, etc., Press Agency, Ltd., 22 T. L. R. 375; Gilbert v. Star Newspaper Co., Ltd., 11 T. L. R. 4; Kenrick V. Danube Collieries, etc., Co., Ltd.. 39 Wkly. Rep. 473.

"At common law the author of a literary composition had an absolute property right in his production which he could not be deprived of so long as it remained unpublished, nor could he be compelled to publish it. This right of property exists at common law in all productions of literature, the drama, music, art, etc." Frohman v. Ferris, 238 Ill. 430. 435, 87 NE 327, 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492].

"The law respecting the ownership of literary property is entirely settled." New Jersey State Dental Soc. v. Dentacura Co., 57 N. J. Eq. 593, 595, 41 A 672 [aff 58 N. J. Eq. 582 mem, 43 A 1098 mem].

30. U. S.-Paige V. Banks. 13 Wall. 608, 20 L. ed. 709; Little v. Hall, 18 How. 165, 15 L. ed. 328; Wheaton v. Peters, 8 Pet. 591. 8 L. ed. 1055; Press Pub. Co. v. Monroe, 73 Fed. 196. 19 CCA 429, 51 LRA 353 [app dism 164 U. S. 105, 17 S Ct 40, 41 L. ed. 367]; Werckmeister v. Springer Lith. Co., 63 Fed. 808; Bartlett V. Crittenden, 2 F. Cas. No. 1,076, 5 McLean 32; Bartlett v. Crittenden, 2 F. Cas. No. 1.082, 4 McLean 300; Boucicault v. Fox, 3 F. Cas. No. 1,691, 5 Blatchf. 87; Boucicault V. Hart, 3 F. Cas. No. 1,692, 13 Blatchf. 47; Boucicault v. Wood, 3 F. Cas. No. 1,693, 2 Biss. 34; Parton v. Prang, 18 F. Cas. No. 10,784, 3 Cliff. 537; Pulte v. Derby, 20 F. Cas. No. 11,465, 5 McLean 328; Stowe v. Thomas, 23 F. Cas. No. 13,514, 2 Wall. Jr. 547.

Ill. Ferris v. Frohman, 131 Il. A. 307 [rev on other grounds 238 Ill. 430, 87 NE 327, 128 AmSR 135, 43 LRANS 639 (aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492)]; Ockenholdt v. Frohman, 60 Ill. A. 300.

Mass.-Keene v. Kimball, 16 Gray 545, 77 AmD 423. N. Y.-Potter v. McPherson, 21 Hun 559; Palmer v. De Witt, 32 N. Y. Super. 530, 40 HowPr 293 [aff 47 N. Y. 532, 7 AmR 480]; Stern v. Carl Laemmle Music Co., 74 Misc. 262, 133 NYS 1082 [aff 155 App. Div. 895 mem, 139 NYS 1146 mem]; French v. Maguire, 55 HowPr 471; Oertel v. Wood, 40 How Pr 10; Hoyt v. Mackenzie, 3 Barb. Ch. 320, 49 AmD 178; Isaacs v. Daly, 6 Leg. Gaz. 175; Jones v. Thorne, 1 NY Leg Obs 408.

Tex.-Vernon Abstract Co. v. Waggoner Title Co., 49 Tex. Civ. A. 144, 107 SW 919.

Eng.-White v. Geroch, 2 B. & Ald. 298, 106 Reprint 376; Southey v. Sherwood, 2 Meriv. 435, 35 Reprint 1006; Tonson v. Collins, W. Bl. 301, 96 Reprint 169.

31. Little v. Hall, 18 How. (U. S.) 165, 15 L. ed. 328; Photo-Drama Motion Picture Co. v. Social Uplift Film

copyright in unpublished works is abrogated, and
all rights must be claimed under the statute and are
only such as the statute gives.3
32 The act, however,
gives copyright in unpublished works.33

[5] 2. Nature and Extent-a. In General. This common-law right of property in intellectual productions differs in no respect from any other form of personal property in the protection which the common law throws about it.34 It is governed by the same rules of trans

Corp., 220 Fed. 448, 137 CCA 42; Denis v. Leclerc, 1 Mart. (La.) 297, 5 AmD 712.

[a] Statutory provisions.-(1) U. S. Rev. St. § 4967, reënacting with some modifications § 9 of the Copyright Act of 1831 provides that "every person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first obtained

shall

be liable to the author or proprietor for all damages occasioned by such injury." (2) The act of March 4, 1909 (35 U. S. St. at L. 1075 c 320 § 2), provides that nothing therein contained shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor.

32. St. 1 & 2 Geo. V c 46 § 31. "No rights in the nature of copyright, other than those conferred or recognized by the Copyright Act, 1911, can be claimed in any literary, dramatic, musical, or artistic work.' Dig. Eng. Civ. L. § 1697.

[a] Summary of statutory provisions. "The protection hitherto enjoyed by an author or his assignee in any unpublished literary, dramatic, musical, or artistic work under the common law (except under the jurisdiction to restrain a breach of trust or confidence) was abolished by the Copyright Act, 1911 (1 & 2 Geo. 5, c. 46), s. 31, and from and after 1st July, 1912, no person is entitled to copyright or any similar right in any such work, whether published or unpublished, otherwise than under and in accordance with the provisions of that statute (ibid., s. 31). The rights of an author in any unpublished work subsist until publication and, thereafter, for the period of the author's life. and for fifty years after his death provided that the author was at the date of the making . . . of the work a British subject, resident or or domiciled within those countries to which the Act extends or, where

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the work has extended over a considerable period, the author was a British subject or was so resident or domiciled during a substantial part of that period (Copyright Act, 1911 (1 & 2 Geo. 5, c. 46) s. 35 (4))." Halsbury L. Eng. Suppl. (1917) p 359.

33. Copyright Act, 1911 (1 & 2 Geo. V c 46 § 1).

34. Paige v. Banks, 13 Wall. (U. S.) 608, 20 L. ed. 709; Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177 ("Erminie"); Palmer v. De Witt, 47 N. Y. 532, 7 AmR 480; O'Neill v. General Film Co., 152 NYS 599 [aff 171 App. Div. 854, 157 NYS 1028]; Langlois v. Vincent, 18 LCJur 160.

The

"An invention, a painting or a book is the property of its creator. He may keep it for his own exclusive use or enjoyment if he sees fit. public has no greater right to it, however useful it may be, than it would have to any other part of his personal property." Jewelers' Mercantile Agency v. Jewelers' Weekly Pub. Co., 155 N. Y. 241, 247, 49 NE 872, 63 AmSR 666, 41 LRA 846 [rev 84 Hun 12, 32 NYS 41].

[a] "The established rule defining the rights of the owner of such prop

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erty may be stated as follows: Every new and innocent product of mental labor, which has been embodied in writing, or some other material form, while it remains unpublished, is the exclusive property of its author, entitled to the same protection which the law throws around the possession and enjoyment of other kinds of property. Whether the product of such labor consists in literary, dramatic or musical compositions, or designs for works of ornament utility, planned by the mind of an artist, they are equally inviolable while they remain unpublished, and their owner may exercise the same supreme dominion over them that the owner of any other species of property may exercise over it." Aronson v. Baker, 43 N. J. Eq. 365, 367, 12 A 177.

or

35. U. S.-Caliga v. Inter-Ocean Newspaper Co., 157 Fed. 186, 84 CCA 634 [aff 215 U. S. 182, 30 SCt 38, 54 L. ed. 150].

La.-Denis v. Leclerc, 1 Mart. 297, 5 AmD 712.

Mass.-Baker v. Libbie, 210 Mass. 599, 97 NE 109, 37 LRANS 944, Ann Cas 1912D 551.

N. J.-Aronson v. Baker, 43 N. J. Eq. 365, 12 A 177 ("Erminie").

N. Y.-Palmer v. De Witt, 47 N. Y. 532, 7 AmR 480; Tams v. Witmark, 30 Misc. 293, 63 NYS 721 [aff 48 App. Div. 632 mem, 63 NYS 1117 mem]; O'Neill v. General Film Co., 152 NYS 599 [aff 171 App. Div. 854, 157 NYS 1028]; French v. Conelly, 1 NYWkly Dig 197.

Eng.-Jefferys v. Boosey, 4 H. L. Cas. 805, 10 Reprint 681.

"The right to literary property is just as sacred, and just as much entitled to the protection of the law, as the right to any other kind of personal property. Its acquisition and succession are governed by the same legal rules which control the acquisition and succession of other property of the same general class, and, if the rights of its owner are violated, he is entitled to the same remedies to which the owner of other personal property may resort for redress." Aronson v. Baker, 43 N. J. Eq. 365, 367, 12 A 177.

[a] "The right is property in its essential features. It is, therefore, entitled to all the protection which the Constitution and laws give to property." Baker v. Libbie, 210 Mass. 599, 604, 97 NE 109, 37 LRANS 944, AnnCas1912D 551.

36. Werckmeister V. American Lith. Co., 134 Fed. 321, 69 CCA 553, 68 LRA 591 [rev 126 Fed. 244]; Baker v. Libbie, 210 Mass. 599, 97 NE 109, 37 LRANS 944, AnnCas1912D 551; Walter v. Lane, [1900] A. C. 539.

[a] ""The foundation of all rights (1) of this description is the natural dominion which every one has over his own ideas. the enjoyment of which, although they are embodied in visible forms or characters, he may, if he chooses, confine to himself or impart to others.' That is, the law recognizes the artistic or literproductions of intellect genius, not only to the extent which is involved and in dominion over ownership of the thing created, but also the intangible estate in such property which arises from the privilege of publishing and selling to others copies of the thing produced." American Tobacco Co. v. Werckmeis

ary

or

ter, 207 U. S. 284, 291, 28 SCt 72. 52 L. ed. 208, 12 AnnCas 595 [quot Bouvier L. D. (Rawles ed)]. (2) "Blackstone considers this exclusive right of property as grounded on labor and invention and reducible to the head of occupancy. 2 Lewis' Blackstone, 405. The protection of the result may be considered as due to original acquisition." Werckmeister v. American Lith. Co., 134 Fed. 321, 324, 69 CCA 553, 68 LRA 591 [rev 126 Fed. 244].

37. Caliga v. Inter-Ocean Newspaper Co., 157 Fed. 186, 84 CCA 634 [aff 215 U. S. 182, 30 SCt 38, 54 L. ed. 150]; Werckmeister V. American Lith. Co., 142 Fed. 827; Carter v. Bailey, 64 Me. 458. 18 AmR 273 (copyright case); Dart house, 40 Mich. 399, 29 AmR 544; Mansell v. Valley Printing Co., [1908] 2 Ch. 441, 1 BRČ 187, 15 AnnCas 133; Millar v. Taylor, 4 Burr. 2303, 2396, 98 Reprint 201.

V. Wood

"The property right of the author has been described as 'an incorporeal right to print [and it should be added to prevent the printing of, if he desires] a set of intellectual ideas or modes of thinking, communicated in a set of words and sentences and modes of expression. It is equally detached from the manuscript, or any other physical existence whatsoever.' Millar v. Taylor, 4 Burr. 2303, at 2396, 98 Reprint 201." Baker v. Libbie, 210 Mass. 599, 605, 97 NE 109, 37 LRANS 944, AnnCas1912D 551.

38. U. S.-Caliga v. Inter-Ocean Newspaper Co., 157 Fed. 186, 84 CCA 634 [aff 215 U. S. 182, 30 SCt 38, 54 L. ed. 150]; Werckmeister v. American Lith. Co., 142 Fed. 827.

Mass.-Baker v. Libbie, 210 Mass. 599, 97 NE 109, 37 LRANS 944, Ann Cas1912D 551.

Mich.-Dart

40

V. Woodhouse, Mich. 399, 29 AmR 544. N. Y.-O'Neill v. General Film Co., 171 App. Div. 854, 157 NYS 1028 [mod 152 NYS 599].

Eng.-Mansell v. Valley Printing Co., [1908] 2 Ch. 441, 1 BRC 187, 15 AnnCas 133: Queensberry v. Shebbeare, 2 Eden 329, 28 Reprint 924. See also infra § 18.

[a] Rule applied.-"The author of a painting, when it is finished, before publication, owns a material piece of personal property consisting of the canvas and the paint upon it. He also owns an incorporeal right connected with it; that is the right to make a copy of it. These two kinds of property, although growing out of the same intellectual production, are in their nature essentially and inherently distinct. The law has always recognized that they are distinct. The defendants' counsel admitted on the argument that, after a copyright has been once taken out, the two kinds of property are distinct, and that the owner of a painting may then sell the painting to person, and the copyright to The claim is that that canbe done before the statutory But the law copyright is taken out. has always recognized that a common-law copyright, before a general publication, is a distinct property from the thing to which the copyOne man may be the right applies. owner of the thing, and another of the copyright in the thing. For instance, a person who has received a

one another. not

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44. Banker v. Caldwell, 3 Minn. 94. 45. Harper v. Donohue, 144 Fed. 491 [aff 146 Fed. 1023 mem, 76 CCA 678 mem]. See infra $$ 40-45.

letter, voluntarily sent him by the
writer, owns the piece of paper upon
which the letter is written; but the
writer of the letter continues to be
the owner of the copyright, and can,
by injunction, prevent the person
who has received the letter from pub-compiler except under the copyright
lishing it." Werckmeister v. Ameri-
can Lith. Co., 142 Fed. 827, 830.

39. Caliga v. Inter-Ocean Newspaper Co., 157 Fed. 186. 84 CCA 634 [aff 215 U. S. 182. 30 SCt 38, 54 L. ed. 150]; Werckmeister v. American Lith. Co., 142 Fed. 827; Baker v. Libbie, 210 Mass. 599, 97 NE 109, 37 LRANS 944, AnnCas1912D 551; O'Neill v. General Film Co., 171 App. Div. 854, 157 NYS 1028 [mod 152 NYS 599]; Queensberry v. Shebbeare, 2 Eden 329, 28 Reprint 924. 40. See infra $ 18.

41. See infra § 17. 42.

See infra § 67.

43. U. S.-American Tobacco Co. v. Werckmeister. 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595; Paige v. Banks, 13 Wall. 608, 20 L. ed. 709; Bobbs-Merrill Co. v. Straus, 147 Fed. 15 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086]; Harper v. Donohue, 144 Fed. 491 [aff 146 Fed. 1023 mem, 76 CCA 678 mem].

Ill-Frohman V. Ferris, 238 Ill. 430, 87 NE 327, 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492].

94.

Minn.-Banker v. Caldwell, 3 Minn.

N. Y.-Jones V. American Law Book Co., 125 App. Div. 519, 109 NYS 706; Wright v. Eisle, 86 App. Div. 356, 83 NYS 887; Isaacs v. Daly, 39 N. Y. Super. 511; Woolsey v. Judd, 11 N. Y. Super. 379, 11 HowPr 49.

Tex.-Vernon Abstract Co. v. Waggoner Title Co., 49 Tex. Civ. A. 144, 107 SW 919.

"The property of the author or painter in his intellectual creation is absolute until he voluntarily parts with the same." American Tobacco Co. v. Werckmeister, 207 U. S. 284, 299, 28 SCt 72, 52 L. ed. 208, 12 Ann Cas 595 [quot Bong v. Alfred S. Campbell Art Co., 214 U. S. 236, 246, 29 SCt 628, 53 L. ed. 979, 16 AnnCas 1126].

"After publication the law does not protect the right of an author or

law, but before publication the right
of the producer is absolute and the
protection which the law affords
ample." Taft v. Smith, 76 Misc. 283,
286, 134 NYS 1011.

46. U. S.-Bobbs-Merrill Co. V.
Straus, 147 Fed. 15, 77 CCA 607, 15
LRANS 766 [aff 139 Fed. 155, and
aff 210 U. S. 339, 28 SCt 722, 52 L.
ed. 1086]; Werckmeister v. American
Lith. Co., 134 Fed. 321, 69 CCA 553,
68 LRA 591 [rev 126 Fed. 244. 117
Fed 360]; Parton v. Strang, 18 F.
Cas. No. 10,784, 3 Cliff. 537.

Ill-Frohman v. Ferris, 238 Ill. 430. 87 NE 327, 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492].

Mass.-Baker v. Libbie. 210 Mass: 599, 97 NE 109, 37 LRANS 944, Ann Cas1912D 551.

94.

Minn.-Banker v. Caldwell, 3 Minn.

N. J.-New Jersey State Dental Soc. v. Dentacura Co., 57 N. J. Eq. 593, 41 A 672 [aff 58 N. J. Eq. 582 mem, 43 A 1098 mem].

N. Y.-Taft v. Smith, 76 Misc. 283, 134 NYS 1011; Woolsey v. Judd, 11 N. Y. Super. 379, 11 HowPr 49; Oertel v. Wood, 40 How Pr 10.

only of the works themselves, but the fact of their existence, and the designation of the mode of their existence").

47. U. S.-Atlas Mfg. Co. v. Street, 204 Fed. 398, 122 CCA 568, 47 LRANS 1002; Bobbs-Merrill Co. v. Straus, 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 10861; Harper v. Donohue, 144 Fed. 491 [aff 146 Fed. 1023 mem, 76 CCA 678 mem]; Werckmeister v. American Lith. Co., 134 Fed. 321, 69 CCA 553, 68 LRA 591 [rev 126 Fed. 244].

Ill-Frohman v. Ferris, 238 Ill. 430, 87 NE 327, 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492].

Me.-Carter v. Bailey, 64 Me. 458, 18 AmR 273.

Mich.-Dart v. Woodhouse, 40 Mich 399. 29 AmR 544.

94.

Minn.-Banker v. Caldwell, 3 Minn.

Nebr.-State v. State Journal Co., 77 Nebr. 752, 110 NW 763.

N. Y.-Palmer v. De Witt, 47 N. Y. 532, 7 AmR 480; Wright v. Eisle, 86 App. Div. 356, 83 NYS 887.

Eng.-Donaldson v. Beckett, 2 Bro. P. C. 129, 1 Reprint 837 [cit Millar v. Taylor, 4 Burr. 2303, 2408, 98 Reprint 2011; Prince Albert v. Strange, 2 De G. & Sm. 652, 64 Reprint 293; Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681.

"The author of a literary work or composition has, by law, a right to the first publication of it. He has a right to determine whether it shall be published at all, and if published, when, where, by whom, and in what form. This exclusive right is confined to the first publication. When once published it is dedicated to the common law, any exclusive right to multiply copies of it or to control the subsequent issues of copies by others." Wright v. Eisle, 86 App. Div. 356, 358, 83 NYS 887 [quot Palmer v. De Witt, 47 N. Y. 532, 536, 7 AmR 480].

Eng. Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681; Turner v. Robinson, 10 Ir. Ch. 510 [aff 10 Ir. Ch. 121]; Southey v. Sherwood, 2 Meriv. 435, 35 Reprint 1006. "Every new and innocent product of mental labor which has been embodied in writing, or some other material form, being the exclusive prop-nublic, and the author has not, at erty of its author, the law securing it to him as such, and restraining every other person from infringing his right. Whether the ideas thus unpublished take the shape of written manuscripts of literary, dramatic, or musical compositions, or whether they are the designs for works of ornament or utility planned by the mind of an artist, they are equally inviolable while they remain unpublished, and the author possesses an absolute right to publish them not as he thinks fit, and if he does not desire to publish them, to hinder their publication, either in whole or in part, by any one else." Shortt L. Literature p 48.

or

"The right of the proprietor of such a manuscript to publish it or keep it back from publication is not only a property right, but one which is purely incorporeal and attended with considerations of a nature entirely different from any involved in other rights. The law will not permit it to be interfered with except as he chooses to make it public, and the right is one which is entirely independent of locality and belongs es

may be, and in whatever locality one or more copies of the writings may be found." Dart v. Woodhouse, 40 Mich. 399, 400, 29 AmR 544.

[a] Rule applied. "As author of the work called "The Masquerader, or John Chilcote, M. P.' the literary property vested in her consisted, so far as here material, of the following rights, privileges, or powers: Before publication: The sole, ex- [a] Descriptive catalogue of unclusive interest, use and control. The published drawings and etchings.sentially to the owner wherever he right to its name, to control, or pre-In Prince Albert v. Strange, 2 De G. vent publication. The right of private exhibition, for criticism or otherwise, reading, representation, and restricted circulation; to copy, and permit others to copy, and to give away a copy; to translate or dramatize the work; to print without publication; to make qualified distribution. The right to make the first publication. The right to sell and assign her interest, either absolutely or conditionally, with or without qualification, limitation, or restriction, territorial or otherwise, by oral or written transfer. Such literary property is not subject either to execution or taxation, because this might include a forced saie, the very thing the owner has the right to prevent.' Harper v. Donohue, 144 Fed. 491, 492 [aff 146 Fed. 1023 mem, 76 CCA 678 mem].

& Sm. 652, 64 Reprint 293. 1 Hall &
T. 1, 47 Reprint 1302, 1 Macn. & G.
25, 47 EngCh 19, 41 Reprint 1171, it
was held that the court of chancery
will interfere to prevent the inva-
sion of the common-law right of the
drawer or designer of etchings and
drawings which had never been pub-
lished and were kept for his private
use and pleasure, by the publication
of a catalogue containing а de-
scription
of such work. See 2
Kent Comm. (11th ed) 380 note
1 (where the editor, referring to
this point in the decision, says:
"A writer in the London Jurist
(February, 1849) intimates doubts.
and with apparent justice, of the
correctness of this position. It is
certainly carrying the right of au-
thors to a great extent to restrain
by injunction the communication, not

[a] Illustration.-In 1723 the Earlof Clarendon delivered to one Gwynne the original manuscript of a history written by his father. In 1758 the administrator of Gwynne sold it to defendant for publication, but the representatives of the earl restrained such publication. Queensberry v. Shebbeare, 2 Eden 329, 28 Reprint 924 [cit Millar v. Taylor, 4 Burr. 2303, 2330, 98 Reprint 201].

48. American Tobacco Co. V. Werckmeister, 207 U. S. 284, 28 SCt 72, 52 L. ed. 208, 12 AnnCas 595; Bobbs-Merrill Co. v. Straus. 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086]; Harper v. Donohue, 144 Fed. 491 [aff 146 Fed.

Any use or publication in disregard of such conditions or restrictions is an invasion of his property rights and will be redressed as such.49 The owner is entitled to all profit from any use of his production, so long as that use does not amount to a general publication.50 This right of control resides in the author only so long as he continues to remain the proprietor of his production; if he has parted with his ownership, he may no longer impose terms or conditions on the use to be made by the new owner, except so far as he has reserved rights or imposed conditions in the contract of transfer; all his rights rest on the contract, and in all other respects the new owner has untrammeled control.51

1023 mem, 76 CCA 678 mem]; Werckmeister v. American Lith. Co., 134 Fed. 321, 69 CCA 553. 68 LRA 591 [rev 126 Fed. 244]; Press Pub. Co. v. Monroe, 73 Fed. 196, 19 CCA 429. 51 LRA 353 [app dism 164 U. S. 105, 17 SCt 40, 41 L. ed. 367]; Bartlette v. Crittenden, 2 F. Cas. No. 1,076, 5 McLean 32; Bartlette v. Crittenden, 2 F. Cas. No. 1,082, 4 McLean 300; Parton v. Prang, 18 F. Cas. No. 10,784, 3 Cliff. 537; Frohman v. Ferris, 238 Ill. 430. 87 NE 327. 128 AmSR 135, 43 LRANS 639 [aff 223 U. S. 424, 32 SCt 263, 56 L. ed. 492]; Kiernan v. Manhattan Quotation Tel. Co., 50 HowPr (N. Y.) 194; Oertel v. Wood, 40 HowPr (N. Y.) 10: Exchange Tel. Co. v. Gregory, [1896] 1 Q. B. 147; Mansell v. Valley Printing Co., [1908] 1 Ch. 567 [aff [1908] 2 Ch. 441]; Exchange Tel. Co. v. Central News, [1897] 2 Ch. 48; Prince Albert v. Strange. 2 De G. & Sm. 652, 64 Reprint 293; Queensberry v. Shebbeare, 2 Eden 329, 28 Reprint 924; Jefferys v. Boosey, 4 H. L. Cas. 815, 10 Reprint 681; Prince Albert v. Strange, 1 Macn. & G. 25, 47 EngCh 19, 41 Reprint 1171; Exchange Tel. Co., Ltd. v. Howard, etc.. Press Agency, Ltd., 22 T. L. R. 374; Gilbert v. Star Newspaper Co., Ltd., 11 T: L. R. 4; Kenrick v. Danube Collieries, etc., Co.. Ltd., 39 Wkly. Rep. 473.

"The property of an author in his intellectual production is absolute until he voluntarily parts with all or some of his rights. There is no principle of law by which he can be compelled to publish it or to permit others to enjoy it. He has a right to exclude all persons from its enjoy- | ment; and, when he chooses to do so. any use of the property without his consent is a violation of his rights. He may admit one or more persons to its use, to the exclusion of all others; and, in doing so, he may restrict the uses which shall be made of it. He may give a copy of his manuscript to another person, without parting with his literary property in it. He may circulate copies among his friends, for their own personal enjoyment, without giving them or others the right to publish such copies." Bobbs-Merrill Co. v. Straus, 147 Fed. 15, 18, 77 CCA 607, 15 LRANS 766 [aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086].

"He may make an assignment either absolute or qualified in any degree. He may lend, or let, or give, or sell any copy of his composition, with or without liberty to transcribe, and if with liberty of transcribing, he may fix the number of transcripts which he permits. If he prints for private circulation only, he still has the same rights, and all these rights he may pass to his assignee." Jefferys v. Boosey, 4 H. L. Cas. 815, 868, 10 Reprint 681.

"The author has an indisputable right to his manuscript; he may withhold or he may communicate it, and, if he communicates it, he may limit the number of persons to whom it is to be imparted, and impose such restrictions as he pleases upon the use of it. This right exists at common law, and is distinct from copy

52

[7] C. Execution, Attachment, Foreclosure, and Bankruptcy.5 Since the law will not permit this right of the owner of a manuscript to publish it or to keep it back from publication to be interfered with, except as he chooses to make it public, it has been held that an unpublished manuscript cannot be seized and sold on attachment or execution.53 But this doctrine has been criticised by other authorities, and unpublished manuscripts, considered as physical property, have been held subject to seizure and sale on execution.54 Where manuscripts have been mortgaged, they may be sold on foreclosure.55 A trustee in bankruptcy has no right to publish, for the benefit of creditors, a bankrupt right, which is created by statute as property." Bartlett v. Crittenden, and limited in respect of time." 8 2 F. Cas. No. 1,076. 5 McLean 32, 37. Halsbury L. Eng. p 137. [a] Transfer in fraud of creditors. Limited or qualified publication-Where the controversy grew out of see infra $ 47. an execution levy made by the judgment creditor on a set of manuscript abstract books which were at the time in the possession of the execution debtor who had transferred them to a third person under a transfer which was claimed to be invalid against creditors. it was held that, since an unpublished manuscript cannot, by reason of the nature of the property therein, be subject to execution, the creditors could not complain of its disposal. Dart v. Woodhouse, 40 Mich. 399, 29 AmR 544 [foll Perry v. Big Rapids. 67 Mich. 146, 24 NW 530, 11 AmSR 570].

49. See infra § 58. See also infra § 62 text and notes.

50. Mansell v. Valley Printing Co., [1908] 2 Ch. 441, 447, 1 BRC 187, 15 AnnCas 133.

"I am of opinion that it is an incorporeal right of property giving to the author the fullest rights not only of exclusion, but also of actual énjoyment so far as they are compatible with non-publication. All his rights at common law are limited until and cease upon publication. Before publication he may keep his work unseen or unheard; he may show or recite it to his friends; he may deliver his lectures to students or allow his MS. play to be acted on special terms, provided always that the use to which he puts it does not amount to publication. Such publication must be by himself or his assigns, and is a question of fact in each case, which may be inferred from acts or conduct." Mansell v. Valley Printing Co., supra.

What constitutes publication see infra §§ 46-56.

51. See infra § 38.

Alteration or mutilation of au-
thor's manuscript see infra § 38.
Use of author's name see infra § 24.
52. Copyright cases see infra §
255.

53. Harper v. Donohue, 144 Fed.
491 [aff 146 Fed. 1023 mem, 76 CCA
678 mem]; Bartlett v. Crittenden, 2
F. Cas. No. 1,076, 5 McLean 32:
Oystead v. Shed, 12 Mass. 506, 510
(holding that a writ of attachment
is no justification in trespass for
seizing private papers and account
books, because "they are not goods
and chattels, which could be sold on
execution"); Dart v. Woodhouse. 40
Mich. 399, 29 AmR 544; Prince Albert
v. Strange, 1 Hall & T. 1, 47 Reprint
1302, 1 Macn. & G. 25, 47 EngCh 19,
41 Reprint 1171. See Atcherley v.
Vernon, 10 Mod. 518, 88 Reprint 834
(dictum to the effect that creditors
cannot reach unpublished manu-
scripts).

"It is very well settled by the decisions of the United States Supreme court that even after a work is published no creditor can reach the copyright unless some special provision of law is made on the subject, and it is also settled that the author's rights are never subject to disturbance except in accordance with statute. No law can compel a man to publish what he does not choose to publish." Dart V. Woodhouse, 40

Mich. 399, 401, 29 AmR 544.

"A man may write without any in-
tention to publish. He may treat of
principles and characters without re-
straint-with a view to his mental
improvement, or from some other
motive.
And there is no law
which can compel an author to pub-
lish. No one can determine this
essential matter of publication but
the author. His manuscripts, how-
ever valuable. cannot, without his
consent, be seized by his creditors

54. Banker v. Caldwell, 3 Minn. 94 (abstract books); Washington Bank V. Fidelity Abstract, etc., Co., 15 Wash. 487. 46 P 1036. 55 AmSR 902, 37 LRA 115 (abstract books). See Leon Loan, etc., Co. v. Leon Equalization Bd., 86 Iowa 127, 53 NW 94, 41 AmSR 486, 17 LRA 199 (where on the question of taxation, the court distinguished manuscript abstract books from ordinary author's manuscript).

"In a set of abstract books, or in any other manuscripts, we see nothing intangible, nothing which makes it difficult or improper to subject them to execution. Confessedly they are property, and as such may be valuable to their compiler or owner, and doubtless he may by his voluntary transfer divest himself of title, and vest it in another. His transfer may not divest him of the information contained in them, and certainly will not impair the skill required in their compilation or use. The fact that he does not and cannot transfer his information and skill constitutes no ground for denying his ability to transfer so much as is transferable. In a state whose statutes in general terms declare all property subject to execution, we can perceive no reason for holding abstract books or other valuable writings not subject to execution." Freeman Executions (2 ed) § 110 [quot Washington Bank v. Fidelity Abstract, etc., Co.. 15 Wash. 487, 489, 46 P 1036, 55 AmSR 902, 37 LRA 115].

[a] Effect of levy.-(1) Where an unpublished work is levied on by the sheriff, the exclusive rights of the author therein are not destroyed or taken away until sale. The effect of the levy is simply to suspend his right to the immediate possession, and on payment of the debt he is entitled to have it returned in the same condition as when seized. Banker v. Caldwell, 3 Minn. 94. (2) The sheriff has no right to make or to dispose of copies of the work; his only right is to preserve it and sell it under the execution in the same condition as when levied on. Banker v. Caldwell, supra.

55. Washington Bank v. Fidelity Abstract, etc., Co., 15 Wash. 487, 46 P 1036, 55 AmSR 902. 37 LRA 115 (chattel mortgage on set of abstract records, maps, and indexes of lands).

[blocks in formation]

56. Copinger Copyright (5th ed) p 121; 8 Halsbury L. Eng. p 158; MacGillivray Copyright pp 83, 275.

Copyrights as assets see infra

255.

57. Harper v. Donohue, 144 Fed. 491 [aff 146 Fed. 1023 mem, 76 CCA 678 mem]: Perry v. Big Rapids, 67 Mich. 146, 24 NW 530, 11 AmSR 570.

58. See cases infra notes 59, 60. [a] Conflicting views stated.-(1) In Perry v. Big Rapids, 67 Mich. 146, 147, 150, 24 NW 530, 11 AmSR 570, it was held that the manuscript abstract books have no intrinsic value and are not taxable, Campbell, C. J., saying: "The constitution requires assessments to be made on property at its cash value. This means not only what may be put to valuable uses, but what has a recognizable pecuniary value inherent in itself, and not enhanced or diminished according to the person who owns or uses it. The court below found expressly, and could not have found otherwise, that these abstract books have no intrinsic value. They are only valuable for the information they contain, and that information is conveyed by consultations or extracts. Their value is only kept up by their completeness and continued correction. The sale of a complete copy would practically destroy the value of the books in the hands of the plaintiff. So a similar compilation by any one else would have a like result. The value of the books, except as used, is nothing. They resemble in nature, if not precisely, the books which are consulted by any person who makes an income from his acquired knowledge, whether scientific or otherwise; as a surveyor's notes, an author's memoranda, a druggist's recipes, and many analogous things. They may be and are very serviceable, but they are not things that the law has made subject to seizure or assessment. If these books were taxable as personalty, they could be made liable to satisfy it, and this, in our opinion, cannot be done. As the whole subject was discussed and disposed of in Dart v. Woodhouse, 40 Mich. 399, it does not seen necessary to rehearse or review what was there held. All civilized governments respect private manuscripts, and treat them as not partaking of the nature of property open to ordinary sale and disposal. The possession of them gives no right in the possessor to use them, or publish them, unless by the acquiescence of the originator. While it often has happened that trade secrets, and other information which has been noted down in writing, may furnish means of acquiring profit, it was never imagined or held that the writings themselves were subject to seizure and sale without consent. Any attempt to make value out of such a sale would be really a sale of knowledge, and not of property." (2) But in a dissenting opinion by Morse, J., it was said: "The main issue to be determined is the liability to taxation of these abstract books. I think they are subject to taxation the same as other personal property. They cannot be considered as scientific discoveries, nor is there any particular genius exercised in their creation. They are not like the manuscripts of an author, the recipes of a druggist,

[§ 9] 3. Duration. Common-law property rights in intellectual productions are of indefinite or perpetual duration,61 continuing in the owner until abandoned or lost by a general publication.62

[10] B. Subject Matter-1. Intellectual Conception. The common-law property in intellectual productions is not limited to the exact form in which the author has expressed his ideas; the property is in the intellectual conception, and the author may claim it as his own in whatever form it can be identified as his production.68 Such property is not in ideas in the abstract, for mere ideas are not the which the artisan plies his calling,

or a copyright. The work of compiling these abstracts is a mere mechanical one, involving no independent creation of the mind of the transcriber. It is not in any sense the work of genius, or the development of new thoughts or ideas. They are no more the creation or creature of the mind than is the iron or wood work of the skilled mechanic, nor are they SO much So.. These abstracts have also a cash value, and pass from hand to hand, and are bartered and sold like other property.

They brought $2.900 in this very case when sold by the maker to the plaintiff. Can it be said that these books in the hands of the plaintiff are purely incorporeal. with no tangibility that the tax-gather can reach? .. If these books are property, they ought to be subject to taxation. It cannot be disputed from this record but that they have been both used and sold as property, and have a large money value." (3) And in the case of Leon Loan, etc., Co. v. Leon Equalization Bd., 86 Iowa 127, 134, 53 NW 94, 41 AmSR 486, 17 LRA

199, although it was said that

the court must not be understood as committing itself to any view of the law relative to the liability of authors' manuscripts being taxable, it was held that a set of abstract books was taxable as personal property, and the majority opinion in the above cited case of Perry v. Big Rapids, 67 Mich. 146, 34 NW 530, 11 AmSR 570, was criticized. In delivering the opinion of the court, Granger, J., said: "The Michigan cases attach great importance to the fact that the proprietor of a manuscript may control or determine whether or not it shall be published, and that, without publication, there is no value as a basis for an assessment or levy. We are unable to understand the application of the thought to the case at bar. In cases of manuscript, designed for publication, their value, in a general property sense, may be said to be in the published work or the right of publication, for it is then only that it becomes of interest to others than the author. It is when the manuscript is, by the author, put in condition for use, that it takes to itself value in a commercial sense. Before publication, or a transfer of the right of publication by the author, the manuscript is but a private memorandum or writing, without significance, except to the author, like other private memoranda. When the author places it upon the marts of the world for use or profit, a commercial value attaches, and it becomes 'property' in the general sense. Before the publication, or the granting of right to publish, the author's work is incomplete. In the light of a design to publish a work, nothing has been produced. These abstract books answer the original design, are complete, and placed before the public for use and profit. They were not made for publication, in the general sense. Such a publication would defeat the very purpose of their production. Their value consists, chiefly, in their contents being kept from the public. They are the means, in a sense the instruments, for carrying on a business; as much so as are the tools or machinery by

a

The rule as to patents and copyrights, as claimed by the appellant, from the cases of Stephens v. Cady, 14 How. (U. S.) 528, 14 L. ed. 528, and Stevens v. Gladding, 17 How. (U. S.) 447, 15 L. ed. 155, whereby they are not subject to seizure on execution because incorporeal their nature and without existence in any particular place, is not applicable here, for the reason that these books are tangible, have a particular location, and are capable of seizure and delivery."

in

59. Leon Loan, etc.. Co. v. Leon Equalization Bd., 86 Iowa 127, 53 NW 94, 41 AmSR 486, 17 LRA 199; Booth, etc., Abstract Co. v. Phelps, 8 Wash. 549, 36 P 489, 40 AmSR 921, 23 LRA 864.

as

of

[a] Reason and application rule. "The only question involved in this case is whether a set of abstract books is included within the term 'personal property,' for the purposes of taxation, The proof shows that the information contained in the books is largely in the form of abbreviations and cipher peculiar to that particular set of books, and only five persons understood them, as far was known to the manager and secretary of the company, that no information could be derived from the books except by an expert in that. line of business, and that it would be necessary for him to understand such abbreviations and cipher. It is contended that the books were of no value to the public or to any one who did not understand them; that while the books originally in blank form were of some value, the fact that they contained such writings had destroyed this value even, and that they are not assessable for the purpose of taxation. There was some proof, however, to show that certain maps connected with the business had a general value to the extent perhaps of a hundred dollars. We are of the opinion that the property was subject to taxation. The fact that it requires the services of an expert to obtain the necessary information from the books may detract from their value in a general sense, but would not deprive them of all taxable value. If the property was assessed at too high a figure it would be no ground for issuing a writ of injunction. Another remedy is provided therefor." Booth, etc., Abstract Co. v. Phelps, 8 Wash. 549, 550, 36 P 489, 40 AmSR 921, 23 LRA 864.

60. Perry v. Big Rapids, 67 Mich. 146, 34 NW 530, 11 AmSR 570.

61. Bobbs-Merrill Co. v. Straus, 147 Fed. 15, 77 CCA 607, 15 LRANS 766 [aff 139 Fed. 155, and aff 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086]; Woolsey v. Judd, 11 N. Y. Super. 379, 11 How Pr 49.

62. Bobbs-Merrill Co. v. Straus, 210 U. S. 339, 28 SCt 722, 52 L. ed. 1086; Keene v. Kimball, 16 Gray (Mass.) 545, 77 AmD 426. "Until publication the proprietary right is unrestricted as to time.' 8 Halsbury L. Eng. p 136. Abandonment by publication see infra 41 et seq.

63. Universal Film Mfg. Co. v. Copperman, 218 Fed. 577, 134 CCA 305 [aff 212 Fed. 301]; Taft v. Smith, 76 Misc. 283, 134 NYS 1011.

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