and Private Nuisances is not marked by a separate method of procedure as it is in England, it is only in the case where the evil affects individuals in reference to particular property that it belongs to this department.

No one is entitled to use his property wantonly, to the prejudice of his neighbour, or even to employ it for profitable purposes, if by doing so he materially injure the property of another. Thus, a manufacturer cannot use a stream in such operations as may render it "putrid and unfit for the use of man and beast" in its passage through another person's property; 2 and a limekiln was adjudged a nuisance, when it was so near a garden that "part of the march hedge opposite to the kiln was dead, and that the trees, bushes, and grass for some way from the march had suffered by the heat." 3 But if the operation carried on is important to the manufacturer, and the injury to the neighbouring proprietor not material, the law is jealous of restricting the free use of property. So, where a draw-kiln was erected very near the dwelling-house of a neighbouring proprietor, the court would not direct it to be removed, although it might be attended with inconvenience, as the spot chosen was in many respects the most commodious for the proprietor of the kiln.*

Where it is not very important to the individual causing the nuisance to pursue his business in that particular place which is inconvenient to a neighbour, and it is of such a description that he can easily choose a fitting place for it, a stricter rule would appear to be followed. Thus, the proprietor of an upper floor was not allowed to let it to a fencing master, whose school disturbed the tenants of the floor below. A printing-office was found a nuisance in similar circumstances. On the same principle, and on the additional plea of danger, a blacksmith's workshop, in a second story, was ordered to be removed.? Where anything connected with one tenement does damage to another-as in the case of a flow of water, &c.—the occupant of the tenement whence the injury proceeds is liable. The landlord is also liable if the injury proceed from defective construction; but he is not responsible on the simple ground of an injury having been caused, unless it be shown that his own neglect, or a deficiency in structure caused the injury. Where an erection causes

E. ii. 1, 2.-2 Miller v. Stein, November 1791, M. 12823. Dunn v. Hamilton, 11th March 1837.-3 Ralston v. Pettigrew, 29th July 1768, M. 12808.- Dewar v. Fraser, 20th January 1767, M. 12803.-5 Fleming v. Ure, 24th February 1750, M. 13159.- Robertson, &c. . Pillans, 2d March 1802, M. Ap. Pub. Police, No. 3.-7 Kinloch v. Robertson, 20th June 1756, M. 13163.- Weston v. Tailors of Potterrow, 10th July 1839.

inconvenience or annoyance to a neighbour, if the proprietor can alter it so as to terminate the nuisance, he will be directed to do so. Thus, a chimney of a stable which emitted smoke near the windows of a house was directed to be raised.1

A person who goes to the vicinity of a nuisance is not entitled to the same legal protection as one to whose neighbourhood it has been carried. So where one had built a villa in what was supposed to be a dangerous proximity to a quarry, and having, before he commenced building, to remove rubbish caused by the quarry, had his property injured by the accumulation of more such rubbish, he was not entitled to damages.2

Persons who, in the performance of illegal acts, or by culpable negligence, injure the property of others, are liable to repair the injury. But where the injury is done in the course of protecting property from trespass, or risk occasioned by the carelessness of others, there will be no right to damages, unless there has been malicious destruction or reckless violence. The ruling principle in such questions was well illustrated by a case where a stallion had broken away from the owner's field, and entered the enclosures of a neighbour where there were mares. The servants of the latter pursued the stallion, and one of them seizing a paling stab struck him. It was said that there was a rusty nail in the stab, and that the animal died of a wound inflicted by it. It was found that in these circumstances the person who struck with the stab was not liable to damages.3

Where property is not merely injured, but is actually taken by a person who is not the owner and converted to his own use, an action of damages is not a remedy usually adopted, except in reference to those descriptions of property which do not depend on natural possession, but on the complex operation of law. When a watch or pocket-book is removel from the possession of the rightful owner, a civil action is seldom adopted; but it is generally the protection sought when a copyright or a patent right is infringed.

Copyright. Besides the remedy which the proprietor of copyright has against infringements of his property by ordinary law, the following special remedies are provided by the Copyright Act, 5 & 6 Vict. c. 45:

Any person who prints within the British dominions, for sale or exportation, any copyright book, without the consent

'Laing v. Muirhead, 7th December 1822.- Thomson v. Gray, 22d December 1842.-3 Turnbull v. Cumming, 12th Feb. 1840.

in writing of the proprietor, or who imports for sale or hire any copies so unlawfully printed, or who is in any way accessory to the sale or hire of such pirated copies, or who has in his possession for sale or hire pirated or imported copies, is liable to an action of damages in the Court of Session (§ 15). N. B. According to the strict interpretation of this clause, the books which are condemned as imported books, are such as are "unlawfully printed" with reference to the clause which describes books printed without license in the United Kingdom. (See above, p. 67.) It would appear that the remedy against the importation of foreign editions is confined to the summary procedure stated below.

If the defender in an action questions the pursuer's title to the copyright, he must give notice of the objection, specifying the person whom he (the defender) holds to be the proprietor (§ 16). Persons piratically importing (viz. for sale or hire as above) foreign reprints of copyright books, forfeit the copies imported (which are liable to be seized by any revenue officer), and are liable on conviction before two justices of peace to a penalty of £10, and double the value of each copy. Of the pecuniary penalty, one half goes to the seizing officer, and the other to the proprietor of the copyright (§ 17). With reference to the protection of proprietors of copyright from piracy by importation, there is an important provision in the Tariff Act. In 3 & 4 Wm. IV. c. 52, § 58, there was a prohibition of the importation of copies of books first published within the United Kingdom, within twenty years preceding. As the customhouse-officers did not possess that literary knowledge which would enable them to state, in relation to every book found in a traveller's luggage, whether it had been written within the twenty years or not, this provision is repealed, and the prohibition is made absolute in favour of all existing copyrights; but to obtain the benefit of it, the proprietor of the copyright must send a notice of its existence and the time of its expiry to the commissioners of the customs, who make out a list of such copyright works to be distributed at the different ports.1

The

No proprietor of a work published after the date of the copyright act (1st July 1842), can take advantage of its special remedies unless he has registered his book. want of registration does not affect the simple right of copyright, it merely deprives the proprietor of the special remedies of the act. It does not affect the exclusive right of the proprietor of a dramatic piece to license its representa

18 & 9 Vict. c. 86, § 144.

tion (§ 24). All actions and remedial proceedings under the act must be commenced within a year after the cause of action (§ 26).

Patents. The extent of the right which a patentee holds has been already considered.*

Except in so far as it is limited by special law, the patentee has full command over his privilege. Whenever it is infringed he can obtain damages. Questions as to the infringement of patent-whether the process said to be an infringement is the same that is covered by the patentwhether it has been practised before the patent itself was obtained, &c.-must go to a jury. If it seem necessary to the evidence of infringement, the court will authorize inspection of the alleged illegal process by persons of skill. It is not admitted as an objection to such an order that the process involves a secret in the defender's possession; but in such a case the court will take such precautions as are practicable against the secret being noted, or if it must be noted, divulged.1

When a person is pursued for infringement of patent, if he intend to object to the validity of the patent, he must give notice of his objections, and he can prove no others but such as he gives notice of, unless with the discretionary permission of the judge on special cause shown.2

Whoever, without license of a patentee, imitates his mark or stamp, or by the use of the word " patent," or otherwise, endeavours to make articles pass off as those of the patentee, is liable to forfeit £50 for each offence.3 An article, for the making of which a patent has expired, may be without any penalty marked as "patent."4

SECT. 5.-Responsibility of Innkeepers and Public Carriers.

Those who undertake as innkeepers to receive travellers, or their cattle, or as common carriers by land or water, to convey persons and goods, without a special contract, have, since a very early period, been, by the commercial code of Europe, held under an obligation to restore all property put into their hands in the state in which they received it. The practice was founded on a fiction of law, that if the property were stolen, or in any other way was prevented from being restored in full to the owner, the custodier was presumed to be the guilty party. The principle now undoubtedly is, that

*See p. 79.-1 Russell v. Crichton, 11th July 1837. Brown v. Brown, 9th July 1840.-2 5 & 6 Wm. IV. c. 83, § 5.— Ibid. § 7.- Ibid.

the carrier, innkeeper, &c., from the mere adoption of his profession, undertakes (with certain exceptions) to ensure the safe return of whatever property is put into his hands, unless he stipulate to the contrary.

Who responsible for Property. The descriptions of persons responsible are, all public carriers by land, whether using as vehicles, carts or waggons, mail or stage coaches, gigs, &c. Hackney coachmen, giving themselves out merely as carriers of persons, do not come within the rule, unless they have specially engaged to carry goods. All carriers by water, as masters and owners of vessels of any description,. used for public carriage of goods, come under the rule. Wharfingers are included in the class liable as carriers. Innkeepers, stablers, &c., are liable for the goods deposited in their premises by guests.1

The proprietor may interfere with the responsibility, by volunteering to take care of his property in his own manner. A mere arrangement, or attempted provision for better security, will not however take the responsibility from the innkeeper or carrier. A clear case of taking the things from under his charge must be shown. That the loss has been occasioned, not by the carelessness of the depositary himself, but that of another person, is, on the principle of insurance, no defence in as far as respects his servants or assistants in the concern; he is indeed liable for the goods put into their hands, as if they had been placed in his own.2

Commencement.-Nice questions often arise as to the state of matters in which the responsibility commences and terminates. The property must be fairly in the keeping of the carrier, &c., or his servants, and out of that of any other person. Where a shop-porter was sent along with a carter, to take a cask of spirits from the warehouse to a purchaser, and on both lowering it, the rope broke, and the cask was staved, it was found that the carter was not responsible, the cask never having been truly under his charge. The time at which the responsibility commences and terminates must depend, in a great measure, on the customs of trade. It was found by a jury, that delivery of goods to a member of the Society of Carters in Leith, with a proper direction, but without a receipt, or insertion in the carter's books, was not, by the custom of Leith, proper delivery by the shipowner to the consignee as represented by the carter.4

1G. F. Jones on the Liabilities of Carriers. B. C. i. 467, et seq.- St. i. 13, 3. B. C. i. 471.3 Reid v. Mackie, 18th June 1830.- Ed. &c. Sh. Co. v. Ogilvie, 31st January 1819, 2 Mur. 136.