in that jurisdiction to enforce liability for the death of an intestate wrongfully caused in the State of New Jersey, Mr. Justice Miller said: "It is indeed a right dependent solely on the statute of the State; but when the act is done for which the law says the person shall be liable, and the action by which the remedy is to be enforced is a personal and not a real action, and is of that character which the law recognizes as transitory and not local, we cannot see why the defendant may not be held liable in any court to whose jurisdiction he can be subjected by personal process or by voluntary appearance, as was the case here. It is difficult to understand why the nature of the remedy, or the jurisdiction of the courts to enforce it, is in any manner dependent on the question whether it is a statutory right or a common-law right. Whenever, by either the common law or the State, a right of action has become fixed, and a legal liability incurred, that liability may be enforced, and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties." Dennick v. Railroad Co., supra.

It is not perceived why a right of action transitory in its nature, arising ex delicto, under a statute of a foreign State, should not be as readily enforced by the courts of this State as are those which arise ex contractu, but which depend for their validity upon the statute of a foreign State. Rights of the latter class are enforced without hesitation. Some of the decisious seem to rest upon the principle that rights acquired or liability incurred, under a statute in one State, will not be enforced in a foreign State, unless the law of the forum and that of the place where the right of action accrued are of similiar import and character, or unless both concur in giving a right of action for the injury complained of. Leonard v. Steam, etc., Co., 84 N. Y. 48, and cases cited; Boyce v. Railroad Co., supra. Other well-considered cases proceed upon the theory that in order to justify a court in one State in refusing to enforce a right of action which accrued under the law of another State, it must appear that the liability sought to be enforced is against good morals or natural justice, or that the enforcement of the law would be prejudicial to the general interests of the citizens of the State whose courts are asked to give it effect. Herrick v. Railway Co., supra, and cases cited. As has already been seen, the statutes of the States of Indiana and Michigan are so nearly identical in import and character as to manifest the close coincidence in the policy of the two States in respect to the statutes applicable to cases like the present. Under such circumstances, there is, as is said in the case of Railway Co. v. Richards, 4 S. W. Rep. 627, a general concurrence of authority to the effect that the courts in either State, which can by their process obtain rightful jurisdiction over the person of the defendant, will enforce liabilities aris ing in the other. We need therefore give the question above suggested no further consideration, except to say that the better view, as applied to actions for death caused by negligence, seems to be that taken by the Court of Appeals of the State of New York, which is that while the statutes of the different States involved need not be alike in detail, they should be of the same import and character. Story Confil. Law, 845, note. Indeed this seems to be the better view in any case where the statute of a foreign State has made that actionable for which an action was expressly forbidden by the common law, since by the adoption of the common law it may plausibly be urged that prohibition was also adopted in the absence of an express statute making that actionable for which an action was previously forbidden. All the cases agree that whatever the law of the forum may be the plaintiff's case must stand, if at all, so far as his right of

action is concerned, upon the law of the place where the injury occurred. Hyde v. Railroad Co., 61 Iowa, 441; Allen v. Railroad Co., 45 Md. 40. In order to maintain an action of tort founded upon an injury to the person, or for wrongfully causing the death of the person injured, the wrong which caused the injury and death must at least be actionable by the law of the place where it was committed, if not also by the law of the place where redress is sought. Unless the alleged wrong was actionable in the jurisdiction in which it was committed, there is no cause of action which can be carried to and asserted in any other jurisdiction. Le Forest v. Tolman, 117 Mass. 109; Davis v. Railway Co., 143 id. 301; 28 Am. & Eng. Ry. Cas. 223; Deevoise v. Railroad Co., 98 N. Y. 377;. Whitford v. Railroad Co., 23 id. 465; McDonald v. Mallory, 77 id. 564.

The principle last above stated ruled the decision in the case of Buckles v. Ellers, 72 Ind. 220. That was an action by an unmarried woman to recover damages for her own seduction. The injury complained of was committed in the State of Illinois. Notwithstanding the statute in this State which confers upon every unmarried woman a right to prosecute an action for her own seduction, in the absence of any thing to the contrary being made to appear, it was correctly assumed that the common law, under which no such action could be maintained, was in force in the State of Illinois. It followed, necessarily, that the court held the action not maintainable. On the authority of a text-writer of high repute, it was stated in an incidental way, in the case referred to, that even if it had been shown that there was a statute in Illinois which conferred upon the plaintiff in that case the right to sue for her own seduction, that would not have authorized her to maintain an action in the courts of this State upon principles of comity, as it was only common-law rights, or such rights as are recognized as existing by the general usage of civilized nations, which can be enforced by comity in a foreign forum. This statement in no way impairs the correctness of the conclusion reached in the case, but in the light of the more recent decisions and authorities, it may be doubted whether the text relied on can be regarded as expressing the law upon the subject with entire accuracy. To the extent that any thing found in the opinion referred to conflicts with what is here decided, that case may be deemed modified.

What has been said leads to the conclusion that the learned court erred in sustaining the demurrer to the complaint. The judgment is therefore reversed, with costs.

FARMER V. ELSTNER.* Complainant was the author and proprietor of an elaborate book of 1,024 pages, entitled "A History of Detroit and Defendant's Michigan, or the Metropolis Illustrated." publication was a pamphlet of 274 pages, entitled " The Industries of Detroit;" the first 70 pages of which were mainly historical, and contained about 100 short extracts from the complainant's book. The remaining 200 pages consisted of advertisements only. Held, that as threefourths of the extracts from complainant's book, and practically all to which he could lay claim as original matter, were contained in the first chapter, being the first 11 pages of the pamphlet, the injunction should extend only to this portion of the publication.

*33 Fed. Rep. 499.

E. C. Hinsdale and C. I. Walker, for plaintiff.

George S. Hosmer, for defendant.

BROWN, J. We have felt considerable difficulty in reaching a satisfactory conclusion in this case, from the fact that the piracies, though numerous, are not extensive; and from the further fact that defendant's pamphlet was evidently not intended to supersede, or in any way interfere with the sale of the elaborate and instructive work of the plaintiff. Where defendant's publication is designed to rivel or compete with the plaintiff's in the market, courts are astute to protect the technical rights of the plaintiff to his composition, and will even enjoin an imitation of his general plan and arrangement, though there be no plagiarism of sentences or ideas. Where defendant has been guilty of a complete or substantial reprint of plaintiff's work, no difficulty is encountered in granting an injunction; but where the alleged violation consists in excerpts from the plaintiff, the court is bound to consider not only the quantity and quality of the matter appropriated, but the intention with which such appropriation is made, the extent to which the plaintiff is injured by it, and the damage to the defendant by an injunction.

With reference to the quantity and quality taken, of course no general rule can be laid down applicable to all cases. One writer might take all the vital part of another's book, though it might be but a small portion of the book in quantity. In many valuable books, particularly of a scientific character, the leading ideas of the author may be very few in number, the greater part of the work being devoted either to the illustration or amplification of these ideas, or to there production of the ideas of other authors upon the same subject. The person who could seize these leading ideas, or to use an expression attributed to Macaulay, who "could tear the heart out of the book," though it involved the republication of only a single paragraph, might do the author substantial damage, while another might republish pages without imparting the same information. It is not only quantity, but value and quality, that are to be regarded in determining the question of piracy. Bramwell v. Halcomb, 3 Mylne & C. 738. "It must appear,' said Vice-Chancellor Shadwell, "where a complaint is made to this court, that the piracy has either been of what is called a large part or a material part." Drone Copyr. 524.

Regarding the intent with which the appropriation is made, it is obvious that the use of a certain amount of an author's production may be perfectly fair and legitimate in one case, while the use of a similiar amount in another case might be unlawful. Thus great liberty is exercised in permitting a reviewer to make extracts for the purposes of criticism, so long as such extracts are not made as a cover for a republication, or for the purpose of superseding the original work. Indeed such quotations in the form of criticisms are frequently of great value to the author himself, and may actually increase the sale of his book. Other instances may be imagined, especially in the publication of legal and scientific works, where it would be almost impossible for a subsequent author to properly state the existing state of science, without making quotations from preceding works. Ou the other hand, if the selections are made animo furandi, with intent to make use of them for the same purpose for which the original author used them, to convey in a different publication the information which he imparted, or to supplant him in his own territory, a small quantity will suffice to render the defendant liable to a charge of piracy. Thus in Campbell v. Scott, 11 Sim. 31, the defendant published a work containing an original essay on Modern English Poetry, including biographical sketches of forty-three

modern poets, and selections from their poems, among which were six short poems, and parts of longer poems, the copyright whereof belonged to plaintiff. The selections constituted altogether the bulk of the defendant's work, but were alleged to have been introduced into it for the purpose of illustrating the essay. The court restrained the publi cation of the work as being an infringement of the plaintiff's copyright. The case of Bradbury v. Holten, L. R., 8 Exch. 1, was an action at law by the proprietors of Punch against the defendant for reproducing nine cartoons of Napoleon III, published in Punch between 1849 and 1867, with descriptive writing underneath them. It was held by the court that a substantial part of the plaintiff's book or sheets of letterpress has been appropriated, and that he was entitled to recover. The jury however awarded but forty shillings damages.

In the case under consideration the defendant has made numerous, but not very lengthy, excerpts from plaintiff's book. The excerpts however are from the most valuable part of his work, and contain facts which had never before been published and which were obtained from original sources, at very considerable labor and expense. On nearly one-third of the first 70 pages of defendant's book there are evidences of republication from plaintiff's. On the first 11 pages in particular it appears very clearly that a considerable part of the information contained was taken from it, without any credit to him. On page 9 it is said that "Champlain heard of the strait from Indians in 1603." The same page also contains statements as to Joliet and La Salle, as well as a statement regarding mounds as "evidently of Aztec origin," all taken from plaintiff's book. On page 10 is the following statement: "Antoine Laumet de la Nothe Cadillac was born March 5, 1658, at St. Nicholas de la Grave, in the department of Tarn and Garonne in France. He received a liberal education, was a lieutenant in the French army when he arrived in the new world, and was married at Quebec June 25. 1687, to Marie Terèse Guyon." These are specimens of the extracts made by the defendant from plaintiff's work to the number of about a hundred. There is no pretense that the compiler of this publication resorted to the original sources himself for this information, nor that he procured it from any other source than the plaintiff's book. Had he extended to this book the common courtesy of an acknowledgment, we should have looked upon his appropriation with much more favor than we are disposed to at present. As the case stands, the animus furandi is entirely clear.

The chief difficulty we have met with in this case is the absence of testimony showing that plaintiff has been, or is likely to be, injured by defendant's publication; and as it was not intended as a competing work in any sense of the term, it is doubtful in my mind whether its circulation would prevent the sale of a single copy of plaintiff's book. This book is an elaborate work upon the history, government, architecture, and present condition of the city. Defendants' pamphlet is a mere advertisement of its industries, prefaced by an historical sketch, which alone contains the pirated matter. Some of the facts taken from the plaintiff's book have never before been published, and were gathered by plaintiff from the original sources; but apparently that is not true of all of them. Many of these facts are matters within the common knowledge of those who are aquainted with the history of this city and state, and were taken by the plaintiff himself from prior works, or from sources equally accessible to the defendants. Such facts the defendants would have a right to republish without the plaintiff's assent, or without giving him credit for them. It is true there is an intimation in some cases

that actual damage to the plaintiff need not be proven, and that if the piracy be established it is for the plaintiff himself to judge whether he will insist upon his right to a monopoly. Thus, in Campbell v. Scott, 11 Sim. 31, it was said that the plaintiff was the person best able to judge of the damage done him; and if the court does clearly see that there has been any thing done which tends to an injury, the safest rule is to follow the legal right and grant the injunction. In this case however the defendants had published six poems and parts of other poems, the copyright of which belonged to the plaintiff, and it was impossible to estimate accurately the damage done him. At the same time the facts showed it to be very probable that the plaintiff had lost the sale of a number of copies. But notwithstanding this case, it was held by the same judge in the later case of Sweet v. Cater, 11 Sim. 572, that if the pirated matter is not considerable, that is, where passages which are neither numerous nor long have been taken from different parts of the original work, the court will not interfere to restrain the publication of the work complained of, but will leave plaintiff to seek his remedy at law. It seems to us however that plaintiff ought not to be remitted to his action for damages where the court can see that, from the impossibility of estimating these damages, the remedy must be entirely fallacious. It is probably on this ground that courts have been led in some cases to grant injunctions, though the piracy has been quite inconsiderable in extent. Thus, in Kelly v. Hooper, Drone Copyr. 525, it appeared that the defendant had taken only three and one-half pages from plaintiff's directory of 870 pages, but these formed a large part of defendant's almanac and constituted its chief value. An injunction was granted. So, in Cobbett v. Woodward, L. R., 14 Eq. 407, where an upholsterer who had published an illustrated furnishing guide, with engravings of the articles of furniture which he sold, and descriptive remarks thereon, filed a bill to restrain the defendant, another upholsterer, from publishing for purposes of his own trade a similar work, in which many of the engravings and portions of the letter-press of the first work were alleged to have been copied, it was held that the defendant could not be restrained from publishing the plaintiff's illustrations, or such parts of his work as were not original, but merely descriptive of the stock; but as the defendant had taken eight lines from plaintiff's synopsis, and these were original remarks, it was held that the defendant was not entitled to use them without acknowledgment from the source from which they came, and that plaintiff was entitled to an injunction to restrain the publication of these eight lines.

Where the piracy is not of the entire book, nor of entire chapters or pages, but consists of extracts from different parts of the publication scattered through the defendant's book, the courts have sometimes applied the familiar doctrine of "confusion of goods," and have enjoined the whole book. Thus, in Mawman v. Tegg, 2 Russ. 386, Lord Eldon says: "If the parts which have been copied cannot be separated from those which are original without destroying the use and value of the original matter, he who has made an improper use of that which did not belong to him must suffer the consequences of so doing. If a man mixes what belongs to him with what belongs to me, and the mixture be forbidden by the law, he must again separate them, and he must bear all the mischief and loss which the separation may occasion. If an individual chooses, in any work, to mix my literary matter with his own, he must be restrained from publishing the literary matter which belongs to me; and if the other parts of the work cannot be separated, and if by that means the injunction which restrains the publication

of my literary matter prevents also the publication of his own literary matter, he has only himself to blame." But it is equally clear that if the pirated matter can be separated, the injunction should extend only to that matter, leaving the defendant to do what he pleases with the rest of the book. Drone Copyr. 527. Especially should this be done where an injunction is likely to lead to consequences to the defendant out of all proportion to the damage done to the plaintiff, such, as in this case, to the practical destruction of some bundreds and perhaps thousands of copies. Mawman v. Tegg, 2 Russ. 385; Webb v. Powers, 2 Woodb. & M. 497; Greene v. Bishop, 1 Cliff. 186.

Upon examining the two books in this case, we were at first of the opinion that an injunction should be refused, upon the defendants executing a bond to respond in any damages the plaintiff might obtain in the case, or in an action of law; but the difficulty of estimating such damages seem to us a serious objection to this method of procedure; and that if the plaintiff is entitled to any relief at all it should be given him by injunction against the pirated portions of his book, Upon a careful examination of defendants' pamphlet we find that three-fourths of the extracts from the plaintiff's book, and practically all to which he can lay claim as original matter, are contained in eleven pages of this pamphlet, viz., pages 9 to 20, inclusive, entitled "Detroit's Early History;" and that substantial justice will be done to all parties by enjoining this portion of the defendant's publication. It is true there are about twenty extracts in the following fifty pages; but we think the court may take judicial notice of the fact that most, if not all of them, are of facts which were not originally published by plaintiff, and which the defendants could easily, if they did not actually, obtain from other works readily accessible to the public. To this extent we think plaintiff is entitled to relief, and to this extent only the injunction will go.

CRIMINAL LAW-LARCENY-OF DOG.

FAYETTE COUNTY (OHIO) COMMON PLEAS.

STATE V. YATES.

A dog is a "thing of value," and may be stolen, and burglary may be committed by breaking and entering with intent to steal a dog.

R. C. Miller, prosecuting attorney, for State.
J. C. Weltch, for defendants.

HUGGINS, J. This cause was heard upon demurrer to the indictment. In substance the indictment charged that the defendants, in the night season, forcibly broke and entered a stable with intent to steal two dogs, and that so entering, they did steal two dogs of the value of $40.

The position taken and relied on in support of the the demurrer is that dogs cannot be stolen, and that therefore a breaking and entering with intent to steal a dog is not burglary. To sustain this position the case of State v. Lymus, 26 Ohio St. 400; S. C., 20 Am. Rep. 772, is cited.

It must be conceded that if no material change has been made in the law of the State upon this matter since Lymus' case was decided, it is directly in point, and settles the question here. That case is on all fours with this, it being an indictment for breaking and entering a stable with intent to steal, and the stealing of a dog of the alleged value of $25. It was held in that case that the Larceny Act of Ohio having defined what could be stolen by the words "goods

and chattels," no larceny could be predicated upon the taking of a dog, because dogs were not "such goods and chattels as were esteemed at the common law to be the subjects of larceny."

"The reason generally assigned by common-law writers for this rule, as to stealing dogs, is the baseness of their nature, and the fact that they were kept for the mere whim and pleasure of their owners. * ** In nearly every household in the land can be found chattels kept for the mere whim and pleasure of the owner, *** and yet they are as much under the protection of the law as chattels purely useful and absolutely essential.

"This common-law rule was extremely technical, and can scarcely be said to have a sound basis. While it was not larceny to steal a dog, it was larceny to steal the skin of a dead dog, and to steal many animals of less account than dogs. Lord Coke, is his Institutes, said: 'Of some things that be fera naturæ, being reclaimed, felony may be committed, in respect of their noble and generous nature and courage, serving ob vita solatium of princes and of noble and generous persons who make them fitter for great employ. ments, as all kinds of falcons and other hawks, if the party that steals them know they be reclaimed.' * * ** One reason hinted at by Lord Coke for holding that it was not larceny to steal dogs was that it was not fit that a person should die for them;' and yet those ancient law-givers thought it not unfit that a person should die for stealing a tame hawk." Earl, J., in Mullally v. People, 86 N. Y. 367.

It might be added that to hang a man for stealing a hawk, and hold him guiltless for stealing a dog, is a striking illustration of that peculiar "perfection of human reason" which once was a part of the common law, and of which lingering traces yet remain.

A dog saved the life of William of Orange, and thus probably changed the current of modern history. 2 Dutch Republic (Motley), 398.

The faithfulness of the dog is portrayed in nearly every reading book put into the hands of school children. It has been a favorite theme in literature. We read.

""Tis sweet to hear the watch-dog's honest bark Bay deep-mouthed welcome as we draw near home." - Don Juan, 1st Canto, XVIII Stanza.

-

He was a gash and faithfu' tyke
As ever lap a sheugh or dyke;
His honest sonsie, baws'nt face,
Ay got him friends in ilka place."
The Twa Dogs.-Burns.
"But the poor dog, in life the firmest friend,
The first to welcome, foremost to defend,
Whose honest heart is still his master's own,
Who labors, fights, lives, breathes for him alone,
Unhonored falls, unnoticed all his worth."

- Inscription on the Monument of a Newfoundland
Dog.-Byron.

Yet by the common law, and the law of Ohio as declared in Lymus' case, if some scoundrel had taken the honest watch-dog, or the poet's firmest friend, lucri causa and animo furandi, breaking into the mansion house in the night season for the purpose, no offense would have been committed.

At the highest point of the Great St. Bernard Pass, 8,000 feet above the sea, and near the line of perpetual snow, is the hospice of St. Bernard. There for many ages pious monks have dwelt, and made it the busi ness of their lives to rescue perishing travellers caught and overwhelmed by the snow storms of the Alps. They have bred and kept dogs whose natural and trained sagacity in finding and saving persons, who but for them, must have perished miserably, has long made them celebrated the world over. Without doubt the lives of very many persons have been saved by these dogs. Yet if the pass and hospice of St. Bernard had been in Ohio when Lymus' case was decided, and some evil-disposed person maliciously, and for the sake of gain, had taken the whole kennel of St. Bernard dogs, no offense would have been committed, and that though a storm had been impending and many travellers on the road.

It might be interesting, if space permitted, to trace to its source this singular antipathy of the common law to dogs. I suspect it would be found in the influence ecclesiasticism had upon the common law in its early formative period, and that the cause for the exercise of that influence was found in Deuteronomy, 23d chapter and 18th verse: "Thou shalt not bring the hire of a whore, or the price of a dog, into the house of the Lord thy God for any vow; for even both these are abominations unto the Lord thy God."

These considerations are not directly in point, but may perhaps be excused because of the somewhat singular nature of the subject. The present question is, has any change been made in the law of Ohio since Lymus' case was decided, by reason of which it is no longer decisive of this case, and if so, what is such change?

As held in that case, "the property intended to be stolen by the burglar must be property of which a larceny may be committed." At the time that case was decided, as before said, our Larceny Act, in describing property which could be stolen, used the words "goods and chattels." "These words," says the opinion, "at common law have a settled and well-defined meaning, and when used in statutes defining larceny, are to be understood as meaning such goods and chattels as were esteemed at common law to be the subjects of larceny. As dogs, at the common law, were held not to be the subjects of larceny, they are not included in the words 'goods and chattels.''

Since that decision our Larceny Act has been revised and re-enacted, and the words now used to describe property that may be stolen are "any thing of value." These words, unlike the words "goods and chattels," have no "settled and well-defined meaning at the common law." We are left to find their meaning, if there is any question, by any legitimate aids in that behalf. As to the meaning of the words "any thing" there is no trouble. But as to the meaning of the word "value" the matter is not so plain. Much labor and learning have been expended upon the question of the meaning of the word "value." "Value" is defined by Bouvier as: " (1) The utility of an object. (2) The worth of an object in purchasing other goods.' These definitions are pretty evidently obtained by Bouvier from Adam Smith.

"The word value,' it is to be observed, has two different meanings, and sometimes expresses the utility of some particular object, and sometimes the power of purchasing other goods which the possession of that object conveys. The one may be called value in use; the other value in exchange." Wealth of Nations, chap. 4.

By these definitions value has two meanings. But later learned writers, straining for the last analysis, reject one of these.

"Value is the relation of two services. The idea of;

value eutered into the world for the first time when a man said to his brother, 'Do this for me and I will do that for you.' They had come to an agreement. Then we could say the two services were worth each other." Harmonies of Political Economy. Bastiat.

"Value is the exchange power which one commodity or service bas in relation to another." Science of Wealth. Walker.

Tested by the definitions of these philosophers, a dog has or may have a value. Tested by the common sense of men, and even by the common law, can there be any question that dogs come within the meaning of the phrase "any thing of value?" By the common law dogs were property, and "although it was not a crime to steal a dog, yet it was such an invasion of property as might amount to a civil injury, and be redressed by a civil action." State v. Lymus, supra, citing Blackstone, Bishop & Bacon's Abr.

Why trespass would lie for stealing a dog,

answer the allegation in the plaintiff's complaint that he received, in accordance with the agreement, a bill of lading with the property, the inference is that it was such a bill as the contract called for, and the defendant is estopped from showing that the property was received under any other contract than that conceded by the pleadings. (3) When the evidence clearly shows that the party has had contractual relations with another as an existing corporation, and that such transactions, down to the date of the one in question, have been frequent, and for large amounts, and such as usually pertain to such institutions, he is estopped, after having received the property of such corporation into his hands, from disputing its incorporation, in an action brought to compel an accounting for such property. The general rule is stated in Morawetz on Private Corporations, § 142, "that a person who has contracted with an association assuming to be incor

versed in that "perfection of human reason before said, part of the common law.

once, as

The indictment alleges that the dogs taken were of the value of $40. The demurrer admits every thing well pleaded, and this being a direct averment material to the issue, is admitted, unless the fact that the indictment discloses that dogs are the property of which the value is alleged neutralizes the averment of value.

As to the utility of dogs opinions may differ. The flockmaster whose sheep are worried by dogs, may have one opinion. The shepherd in the hills of Scotland, whose flocks are herded and tended by his dogs, may have another. There are commodities whose value as represented in money is very great, and which it would be a crime to steal, but which many good people think the world would be better without. Dogs are property, sold and transferred in ordinary business transactions. "Large amounts of money are now invested in dogs, and they are largely the subjects of trade and traffic. In many ways they are put to useful service, and so far as pertains to their ownership, they possess all the attributes of other personal property." Mullally v. People, supra. No reason is now apparent why this kind of property should have no protection in the criminal law of Ohio.

The statutes of the State as to dogs have been examined. Without any extended reference to them, it may be said that they are not believed to have any controlling effect in the disposition of this question. Demurrer overruled.

[See State v. Harriman, 75 Me. 562; S. C., 46 Am. Rep. 423; State v. Brown, 19 Baxt. 53; S. C., 40 Am. Rep. 81; C. v. Doe, 79 Ind. 9; S. C., 41 Am. Rep. 599; Mayor v. Meigs, 1 McArthur, 53; S. C., 29 Am. Rep. 578.-ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

BILL OF LADING-INTEREST UNDER CONTRACTAGREEMENT ΤΟ PAY SIGHT-DRAFTS - ESTOPPELPLEADING-ANSWER PRESUMPTION-TRANSACTIONS WITH CORPORATION-DENIAL OF CORPORATE EXISTENCE. (1) Defendants contracted with plaintiffs to accept and pay sight-drafts drawn on them by a third party in payment of certain consignments of cattle and hogs, such drafts to be accompanied by a bill of lading of said consignment. Under this agreement they received and held a consignment of cattle and hogs, but refused to honor the sight-draft, accompanied with the bill of lading, for the same. Held, that the plaintiff had a special interest in the consigned property to the extent of the amount of the draft discounted by it. (2) When the defendant admits in his

after having received the benefit of the contract, set up as a defense to an action brought upon it by the company that the latter was never legally incorporated, or that it had no authority to enter into the contract in a corporate capacity;" citing among others, Palmer v. Lawrence, 3 Sandf. 161; Brouwer v. Appleby, 1 id. 158. The case of Arms Co. v. Barlow, 63 N. Y. 63, goes far to sustain the principle upon which this rule is predicated. In Douglas Co. v. Bolles, 94 U. S. 104, an action was brought upon county bonds given to a railroad company in payment of shares in its corporation. The county set up in defeuse that the railroad company had never been incorporated. The court held that the company had been a corporation de facto, if not de jure, from the date of its organization, and that its corporate existence, and its ability to contract, could not be called in question in a suit brought upon evidences of debt given to it. It is also said in Morawetz on Corporations, § 144, that "it is clear that in an action brought by a corporation de facto for a wrongful appropriation of property owned by it, it is no defense that the company was not incorporated according to law." We think it entirely clear that when an individual receives the property of a corporation through a contract made with such corporation by its corporate name, and there is extrinsic proof of the user of corporate powers by such corporation on previous occasions, a party so surrendering its property is estopped from disputing its incorporation in an action brought to compel an accountfor such property. Congregational Soc. v. Perry, 6 N. H. 164; Williams v. Cheney, 3 Gray, 220. Jan. 17, 1888. Commercial Bank of Keokuk v. Pfeiffer. Opinion by Ruger, C. J.

JUDGMENT EFFECT OF — COLLATERAL IMPEACHMENT OF CONTRACT-FRAUDULENT CONVEYANCESPURCHASE AT EXECUTION SALE-DEFENSE OF VALID JUDGMENT-LIABILITY OF PARTY TO FRAUD-SOLD AND UNSOLD PROPERTY- CREDITOR'S BILL WHEN LIES-FRAUDULENT PURCHASE AT JUDICIAL SALEPARTIES-DEFECT OF-OBJECTION, HOW TAKEN.—(1) The validity of a contract must be litigated when the contract is brought directly in issue by an action upon it, and not in a subsequent action, in the nature of a creditor's bill, for the purpose of satisfying the judgment obtained in the first action. (2) Where a party buys land sold upon execution sale, for the benefit of the judgment debtor, and holds it to defraud his creditors, the transaction is not unimpeachable because the judgment upon which it was sold was valid. (3) One who is a party to a fraudulent transfer of property, for the purpose of defeating a recovery by creditors, is liable to those creditors to the extent of the property in his hands, and to the value of that which has been sold. (4) An action in