exclusive right, within specified parts of the county of Middlesex, to use, and to vend to others to use (but not to build or make), the machines constructed according to the patent. The right so transferred subsequently became vested in two persons. These two both sold machines within the allotted territory. It appeared that one of them had sold seventeen more machines than the other, and realized large profits therefrom. The question before the Court was whether he should be required to account for the profits made from the sale of these machines. After considering the analogies between patent rights and other species of property, the Court determined that they were "compelled to reject all arguments from analogy, and look at the question upon its own apparent merits." Looking at the question in this light, they said: "There is nothing to restrict the party owning each moiety of the right from selling and assigning that moiety, or any fractional part of it, or as many fractional parts as he pleases. Each may purchase as many machines as he pleases; and having purchased them, he may sell them to others, with the right to use and sell them; or may refuse to sell them, and may rent them, or establish manufactories, either alone or in company with others, in which the machines shall be used. Or either party may neglect or refuse to purchase, use, or sell, any machines or any rights, or to make his moiety profitable in any way. The right is thus subject to transfers and subdivisions, and may be used in a great variety of ways. None of the parties interested has any right to control the action of the other parties, or to exercise any supervision over them. It is difficult to see how an equitable right to contribution can exist among any of them, unless itincludes all the parties interested, and extends through the whole term of the patent right. And if there be a claim for contribution of profits, there should also be a correlative claim for losses, and an obligation upon each party to use diligence in making his interest profitable. *** In the absence of any contract, we think each party was at liberty to use his moiety as he might think fit, within the territory described. If the defendants have realized any profits in the manner alleged, it has been by investing capital in the purchase of machines, and the use of skill and labor in selling them; and they have taken the risk of losses. Apparently there is no more reason why the

plaintiffs should claim a part of the advanced price for which they may have sold their machines, than there would have been for claiming a part of the price if they had sold the right itself for an advance. It may possibly be that the sale of seventeen machines so far supplies the market that the plaintiff's moiety of the right is greatly reduced in value; but if it be so, the consequence is very remote, and dependent upon a great variety of causes. There have been patented. articles in respect to which such a sale would have greatly enhanced the value of the other moiety of the right, by its tendency to create a demand. Such a consequence would also be remote. These parties must be regarded as having interests which are distinct and separate in their nature, though they are derived from the same contract; and having such interests, with the right to use them separately, they cannot, for any legal use of them, incur any obligation to each other."1

In England, co-patentees seem to be rather owners in severalty than cotenants. Each may use the patent without subjecting himself to liability to the other. "The right conferred is a right to exclude all the world other than the grantees from using the invention. But there is no exclusion in the letters patent of any one of the patentees. The inability of any one of the patentees to use the invention, if any such inability exists, must be sought elsewhere than in the letters patent. But there is no principle, in the absence of contract, which can prevent any persons not prohibited by statute from using any invention whatever. Is there any implied contract where two or more persons jointly obtain letters patent that no one of them shall use the invention without the consent of the others, or if he does, that he shall use it for their joint benefit? I can discover no principle for such a doctrine. It would enable one of two patentees either to prevent the use of the invention altogether, or else to compel the other patentee to use his skill and capital in the use of an invention on the terms of being accountable for half the profit, if profit should be made, without being able to call on his co-patentee for contribution if there should be loss. This would be to place the parties in a relation to each other which I think no Court can assume to have

1 Vose v. Singer, 4 Allen, 228.

been intended in the absence of express contract to that effect."

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90. Who may be.-All persons, natural and artificial, capable af acquiring property, real or personal, may become tenants in common with one another. In a preceding chapter, it has been shown that corporations, whether sole or aggregate, cannot be joint-tenants with one another nor with a natural person, because the incident of survivorship-one of the chief and most important attached to joint-tenancies-could not be applied to either of two artificial persons endowed with perpetual life, and ought not to attach where, from one tenant being natural and perishable, and the other artificial and perpetual, there could be "no reciprocity of survivorship between them." The reasons preventing corporations from holding an estate as joint-tenants do not exist in regard to tenancies in common. Therefore "the books and cases do not afford any instance in which this right of holding lands as tenants in common either with each other or with natural persons is denied to corporations."2

91. Legislative Grantees.-It is said that a grant by the Legislature is not always subject to the same rules that govern grants to private persons, and that it is a statute conveyance, to be interpreted and controlled by the intent of the Legislature in making it. Hence, where land was frequently granted in large tracts to a number of persons, on condition of settlement, it was held that the grantees took as tenants in common, because the Court was sure that such, beyond reasonable doubt, was the intent of the Legislature.3

892. A tenancy in common may be created by any of the various means by which two or more persons can acquire a unity of the right to possess any species of property. It may arise out of what was before an estate in severalty, by either a grant or devise of such estate to two or more per

1 Lord Chancellor Cranworth, in Matthews v. Green, Law R. 1 Ch. 33. See also Re Russell's Patent, 2 De G. & J. 130.

2 De Witt v. San Francisco, 2 Cal. 298; N. Y. & S. Canal Co. v. Fulton Bank, 7 Wend. 412.

Higbee v. Rice, 5 Mass. 350; S. C. 4 Am. Dec. 63; University v. Reynolds, 3 Vt. 542; S. C. 23 Am. Dec. 234.

sons, or by a grant of an undivided part thereof to one person, by virtue of which the grantor and the grantee would become cotenants with each other. It may result from a divorce by which lands before held by entireties, or as community property, become the property of the former spouses, in separate but undivided moities. It is also called into being by such a destruction of a "joint-tenancy or coparcenary as does not sever the unity of the right to possession. And so, upon the dissolution of a copartnership, the assets of the firm, though subject to the discharge of the partnership liabilities, are held by tenancy in common. Upon the bankruptcy of one, his assignee becomes a tenant in common with the other partners. Upon the issuing of a patent by the government conveying lands to two or more persons they will be deemed tenants in common of equal moieties.1


93. Creation by Transfer of Part.-A conveyance by a grantor, in which the premises conveyed are described as "one-half of my lot," is sufficient to pass the title to the undivided one-half of the lot, and therefore to create a tenancy in common. Tenancy in common may also be created in personal estate by the transfer, by an owner in severalty, of an undivided interest therein. So, while a promissory note cannot be parcelled out, so as to make the payer liable to distinct actions by different assignees, the holder may sell undivided interests in the note to different persons, who thus become co-owners, whose rights among one another, and as against third persons, are governed by the law applicable to tenancy in common.

2 94. Created by Contract for Shares.-If a contract be entered into whereby one of the contracting parties, in consideration of some service to be performed, is to become the owner of some share in any kind of property, the contractors thereby are made tenants in common with each other. Thus,

1 McLeran v. Benton, 31 Cal. 29. Murray v. Mumford, 6 Cow. 441. Halsey v. Norton, 45 Miss. 703.

Markoe v. Wakeman, 107 Ill. 251; 8. C. 15 C. L. N. 261.

Lick v. O'Donnell, 3 Cal. 59; 58 Am. Dec. 383; McCaul v. Kilpatrick, 46 Mo. 434.

8 Conover v. Earl, 26 Iowa, 169.

White v. Brooks, 43 N. H. 402.

where A undertook to save certain iron from a wreck, and B, the owner of the iron, agreed to give A, as compensation for his services, a certain per cent. of the property saved, it was held that A became tenant in common of all iron taken by him from the wreck.' And so where money was advanced to the builder of certain carding-machines, upon an agreement that the person so advancing should have an interest in the machines equal to the amount furnished by him, he was adjudged to be a part owner, as tenant in common with the builder, from the time the advance was made. A delivery of stock to be fattened on the shares, creates a tenancy in common, so that neither of the parties can lawfully appropriate any of such stock to his own use; and a like result follows where two or more persons jointly manufacture timber which is thereafter to be divided between them.1

295. Tenancy in Common from Confusion of Goods. -Whenever the personal property of two or more persons has become so intermingled that neither can designate his portion, they are tenants in common, unless one of them has, by his participation in the production of the mixture, entirely forfeited his rights to the portion which was his. Where a number of bushels of grain is sold out of a large amount, but no severance is made of the sold from the unsold portion, the vendor and the vendee become tenants in common of the whole grain, in proportion to their respective interests.5 A confusion of goods is such an intermixture of the goods of different persons that neither can afterwards distinguish his own. It may therefore occur with every kind of personal property, not so peculiarly marked as to render it distinguishable from other property of the same class. Hence, when the logs of different mill-owners become so mixed that neither can tell which is his, they become tenants in common of the property so intermingled. Perhaps the most frequently recurring instance of tenancy in common arising out


Boylston Ins. Co. v. Davis, 68 N. C. 20; S. C. 12 Am. Rep. 780.

2 Beaumont v. Crane, 14 Mass. 400.

Sheldon v. Skinner, 4 Wend. 530; S. C. 21 Am. Dec. 161.

• Wiggins v. White, Ber. (New Brunswick) 97; Kerr v. Connell, Ib. 133.

Cushing v. Breed, 14 Allen, 380.

Hasseltine v. Stockwell, 30 Me. 241.

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