Scottish Court of Session Decisions

Subject_1 LITERARY PROPERTY.

Maitland
v.
Fraser

1749, Dec. 8.
Case No. No. 4.

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One Edgar made a plan of Edinburgh, and after his death his sisters, who were nearest of kin, gave it to George Fraser, auditor of Excise, to get it by assistance of the master of Elphinston reduced to one foot, which was accordingly done. Some time after a creditor of the defunct confirmed the original plan, and had it sold by public roup by the Commissaries, and it was purchased by Maitland, who it was said had first devised the confirming it to make himself master of it, being then writing the History of Edinburgh, and to discourage bidders told publicly that several copies had been taken of it. He then pursued Fraser (who had sent his reduced copy to London to be engraven) to deliver that copy, and Minto the Ordinary ordered him before answer to produce it in the clerk's hands; but on a reclaiming bill and answers we remitted to the Ordinary to hear them on their several rights. I greatly doubted that he had any right in Fraser's reduced copy, for though if he had come unlawfully by the original and taken a copy, that unlawful act might subject him to damages; yet having got it from the nearest of kin to reduce, that was a lawful act, and the purchaser of the original plan had no more right than an inventor of a new-fashioned machine has right to every machine made on that pattern, or the owner of an original manuscript to every copy taken of it, and here he could plead no special privilege; 2dly, As by the act of Parliament nearest of kin getting possession need not confirm, and, as we have found, transmit their right to their executors, we doubted whether the confirmation gave any right after the nearest of kin attained possession.