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Thus, in the case last cited, following Krevet v. Meyer, 24 Mo. 107, “lawfully possessed” was construed to mean merely, “ peaceably possessed,” and no proof of want of title in the complainant was admissible. The effect has been to produce in some degree the evil sought to be avoided, and a scramble for the possession is the result, as the party first in actual possession, however defective his title or clear his want of one, can only be ousted by the slow process of a real action; and the court will go through the circuity of restoring possession to a tenant at sufferance, whom they will immediately thereafter dispossess on a like summary proceeding brought by the landlord under the other branch of the statute.
But, however widely elsewhere this doctrine may prevail, we doubt if it is the true construction of the statute in Massachusetts. By Gen. Stat. c. 137, § 1, it is enacted that “no person shall make entry, &c., except where his entry is allowed by law, and in such cases he shall not enter with force, but in a peaceable manner.” By $ 2, “ When a forcible entry is made,” &c., " or the lessee holds over," &c., “ the person entitled to the premises may be restored to the possession.” The language here is unlimited, and every forcible entry is prohibited and made cause for restitution. The words used are only “ may be restored,” but this could hardly be considered to give a discretion. It is apparent, however, that every forcible entry is not ground for restitution, as, for instance, on the possession of a servant: State v. Curtis, 4 Dev. & B. 222; for there the possession is in admitted subordination to the title. By the Massachusetts statute, restitution is to be made, not to the “ complainant,” but to the “person entitled.” But no special weight can be attributed to this difference of language, as this particular expression was not part of the original Statute of Forcible Entry, Stat. 1784, c. 8, but was introduced from the Stat. of 1825, C. 89, which gave summary process against tenants, when these two acts were incorporated in one in chap. 104 of the Revised Statutes. By the Stat. of 1784, c. 8, restitution was to be made to the " complainant;" and there is no ground for attributing to the legislature, from their adoption of the expression in question, any intention to limit the class of persons who could have restitution, to those who showed title. By the Stat. of 1784, c. 8, it was given to any person dispossessed; for although the general prohibition of force in § 1 of chap. 137 of Gen. Stat. was not in the Act of 1784, but was first introduced by the revising commissioners in 1836, yet it was expressly stated by them to have been part of our common law, and its enactment to be merely declaratory; Commissioners' notes to chap. 104; and this has been affirmed in Commonwealth y. Shattuck, 4 Cush. 141, 144. Hence, though the provincial statute of 13 Wm. III. gave restitution only to a disseisee, that is, to a freeholder, — for this statute was derived from and receives the same construction as the statute 8 Hen. VI, see Presbry v. Presbry, 13 Allen, 284,- it is clear that the literal construction of the statute of 1784 authorized restitution to every one who complained of dispossession with force.
But though neither the history nor the construction of $$ 1 and 2 of the Gen. Stat. c. 137, discloses any restriction on the class of persons “entitled” to restitution, we think such a restriction is clearly implied from another section of the same statute. It is provided by $ 9, following § 13 of c. 120, that if the title is drawn in question in this proceeding by plea or otherwise, the case shall be removed and the title determined by a higher court. That this cannot refer to the clauses of this chapter relating to process against tenants holding over, is evident, for the estoppel of the tenant in this process, to contest by any plea his lessor's title, has been repeatedly recognized : Coburn v. Palmer, 8 Cush. 124; Oakes v. Munroe, Ib. 282; Green v. Tourtellott, 11 Cush. 227. The right to introduce the issue of title can only therefore apply to the process of forcible entry; and title seems recognized by implication as a sufficient answer to the force, and to restitution therefor.
This view is strengthened by the recent decisions, which hold that in this summary proceeding, if the plaintiff's title determines pendente lite, judgment for possession will not issue: King v. Lawson, 98 Mass. 309; Casey v. King, Ib. 503. These were, it is true, cases between landlord and tenant; but the principle upon which they proceed seems clearly to be, that, where the question of title is examinable, possession will not be awarded on a summary proceeding to one who at the time of judgment is not entitled to the premises, whatever right he may have had to institute the proceeding. The title, it may be observed, which determines the right to possession is not merely, as under the English statutes, above referred to, a subsisting freehold or term for years ; but is any existing possessory right, which would authorize an action of trespass, and for this a tenancy at will is sufficient; Dickinson v. Goodspeed, 8 Cush. 119. The construction of the statutes which we suggest, does not therefore trench on the right of possession under any valid title, however slight, and it seems to be a correct conclusion, that in Massachusetts restitution by the summary statutory proceeding will not be given in any case where there is not title enough to maintain trespass; and a landlord may safely regain possession by force if he use no more than is necessary, and will incur no more liability to the statute process than to an action of trespass qu. cl. or for assault.
COPY BEFORE PUBLICATION.
THE PROPRIETARY RIGHT OF AN AUTHOR OR HIS ASSIGNS OVER LITERARY PRODUCTIONS UNPRINTED BY AUTHORITY DERIVED FROM HIM.
Crowe v. Aiken.
CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF ILLINOIS, DEC. 31, 1869.
1. An author or his assign has before publication an exclusive right to control the use of his literary productions.
2. At the representation of a play, a spectator may not take it down in short-hand.
3. Representation of a play is not, at common law, publication.
4. Representation of a play in England, although equivalent to publication there under St. 5 & 6 Vict. c. 45, $ 20, is not publication so as to affect the exclusive proprietary rights of the author or his assigns at common law in this country.
5. This common-law right is under Congressional control, but cannot be taken away save by Congress, and no existing statute has touched it.
6. A person who can, by unassisted memory of performances authorized by the literary proprietor of a play, carry it away, may be entitled to reproduce it from recollection.
7. It will not be presumed that an unauthorized performance of a play is a proximate or remote result of an act of memory by a spectator, but the proof of this must be positive, and negative every other conclusion.
8. Repeated authorized representations of an unpublished and uncopyrighted play will act as a dedication of it to the public.
9. No restrictive notice to spectators is necessary to assert the authors' rights, nor will such notice assist them in any way.
10. The author's right as creator is natural and inherent, and he may maintain it till dedicated to the public, either in reason or under a statute.
11. These rules apply to lectures and sermons.
· DRUMMOND, J. — The bill in this case was filed to prevent the performance in Chicago of a drama called “ Mary Warner," by the defendant, who is the manager of a theatre. It is based, not upon any copyright statutes, but on the principles of the common law and of equity. Mr. Tom Taylor, a subject of the Queen of Great Britain, is the author of the drama. The plaintiff is the husband of an actress of distinction, known to the public as Miss Kate J. Bateman. The play was written by Mr. Taylor for Miss Bateman, — the principal character to be personated by her, — in pursuance of a contract between the plaintiff and Mr. Taylor, made in February, 1869, at London, and was not intended for publication, but for representation on the stage. The price paid for the same to Mr. Taylor, by the plaintiff, was four hundred pounds sterling. After it was completed, the author duly transferred, in writing, to the plaintiff, all his right in the play and in the manuscript thereof, together with the exclusive right to its representation on the stage in the United States for five years from the 21st of June, 1869. The manuscript was accordingly delivered to the plaintiff, and the play was first represented at the Haymarket Theatre, in London, in June, 1869. Afterwards, the plaintiff and his wife came to the United States, and “ Mary Warner" has been performed at Booth’s Theatre, in the city of New York. It has been successful, and profitable to the plaintiff and his wife, she representing the principal character in the play.
The foregoing facts do not appear.to be controverted. The bill alleges that the play has always been kept in manuscript ; that it has never been printed by Mr. Taylor, by the plaintiff, nor by Miss Bateman, nor, with the consent or acquiescence of any one of them, nor published with the consent or acquiescence of any one of them otherwise than by a representation on the stage, and that the defendant did not produce it, at his theatre, by means of the memory of those who had witnessed its representations on the stage, but by a copy, wrongfully and surreptitiously obtained, from the manuscript or from a printed copy wrongfully and fraudulently printed.
An injunction was issued by the court, and the performance of “ Mary Warner,” by defendant's company, stopped; no serious objection being made at the time, by the defendant's counsel, to the issuing of the writ. The defendant now appears and moves to dissolve the injunction.
A paper has been filed which purports to be an answer, but it has been neither sworn to nor signed by the defendant nor by any one for him, and, therefore, cannot be noticed.
The motion has, however, been fully argued by the counsel of defendant upon two grounds.?
1 The application for the assistance of the court places itself on narrow grounds.
a. The work is by an alien, and not within the scope of the Statutes of Copyright. U. S. Act 1831, c. 16, $ 1; 4 Stat. at Large, 436.
b. It has never been published or dedicated to the public, so that it is still within the control of the author or his assign as an unpublished manuscript at common law. Woolsey v. Judd, 4 Duer, 596, case of private letters threatened to be published in a newspaper. This reviews and comments on all the earlier law, sustains the elder decisions, and overrules Hoyt v. McKenzie, 3 Barb. 324 ; Wetmore v. Scoville, 3 Edw. Ch. 515, and Percival v. Phipps, 2 Ves. & B. 19, which held that the publication of