of savings banks, for their supervision and for trial, and also for the detention of all persons the administration of their affairs. held as witnesses.

CHAP. 392.-An Act for the better security of Laws of 1847, entitled "An Act to amend an railroad employees for labor performed. Passed May 18, 1875.

VOL. I.] MONDAY, OCTOBER 18, 1875. [No. 10.
N. B. The Statutes herein digested took
effect immediately, upon their passage.
When otherwise, it will be specially noted.

NEW YORK WEEKLY DIGEST. Jersey was the proper one if plaintiff elected to treat defendant as their agent in making the collections; their action 16 N. Y., 250), and the Code, in an acwas upon contract (Walter v. Bennett, tion upon such a contract between principal and agent, authorizes the arrest of the agent (Code, sec. 179, sub- sec. 2). The cause of action in New Jersey was upon contract, the same as in this case, upon the jilgment obtained in that State. There was no waiver of remedies by suing defendant upon the contract to pay over the moneys he had collected, and the question of election of remedies does not apply.

N. Y. Common Pleas-Special Term.

ARREST.

An order of arrest will be granted on a udgment recovered in a foreign State for money received in a fiduciary capacity.

Motion to vacate an order of arrest. The facts are in the opinion, which is given in full, as follows:

Daly, J. F., J.

"The defendant was the agent of John T. Seymour & Co. for the purpose of making collections of debts due the

Motion denied, with $10 costs.
Fellows v. Cook.

Aug. 11, 1875.

First Dep't.

firm. On October 15th, 1874, the firm New York Supreme Court-Gen'l Term, made a general assignment for the benefit of creditors. The defendant afterwards,

ASSESSMENT.

Stock of foreign corporations owned in

The

with knowledge of such assignment (as it is alleged), and without authority from New York cannot be taxed. the assignees, made collections amount- actual value of the capital stock of a ing to over $700 from debtors of the corporation which has no legal situs assignors, and refused, on demand of the out of the State taxable in the State. assignees, to pay over to them the moneys The Commissioners of Assessments asso collected. The assignees, then plain- sessed the value of the capital stock of tiffs, recovered a judgment by default the Pacific Steamship Co., for the year against defendant in an action of debt 1874, at $20,000,000. This assess ment for the amount of such collections, in the was duly entered in the Commissioners' Circuit Court, Essex County, New Jer- books, and left open for inspection and sey, on May 8th, 1875. This action is correction. brought upon such judgment, and an The Vice-President and Managing Diorder of arrest granted against the defend- rector of the Company applied to have ant. The plaintiffs, by obtaining judg- the assessment reduced to $1,330,000. ment against defendant for debt, would After examining him under oath, the seem.. to have treated him as their Commissioners reduced it to $5,749,518. agent, and to have ratified his act in The Company thereupon sued out a making the collections. They were en- writ of certiorari to review the matter titled to an order of arrest against him, before the General Term. on the ground that the moneys were re- It was argued on the review that the ceived by him in a judiciary capacity, in Company was not liable to taxation on an action brought upon their judgment 2,085 shares of stock of the California. (Atherton v. Dalley, 20 How. P. R., Dry Dock Co. (included in the reduced 311). The form of the action in New assessment), as they were, and had al

ways been, situated in San Francisco, and It was claimed that the Court, before held by Company's agent there; and that which he was tried, was not a legally their value, $104,250, should be deducted. Held, That the value of the California Dry Dock Co. should be deducted.

This Court has lately held that the stock of foreign corporations owned by individuals in this State cannot be taxed here (The People ex rel. Trowbridge v. The Commissioners, which was approved by the Court of Appeals).

constituted Court. It appeared that at the commencement of the trial, the Court consisted of a Justice of the Supreme Court, the County Judge and two Justices of the Peace. During the trial one of the latter was absent a whole day, during which evidence was taken, and the trial proceeded with; on the following day he resumed his seat, and took It was further argued that there should part in all subsequent proceedings. After be deducted the value of certain ships the charge to the jury had been dethen building out of the State of New livered, and before the rendition of the York; and the value of certain ships verdict, the County Judge left the Court located permanently on the Pacific coast, and did not return. though registered in New York, on the ground that the State should not tax when it does not protect. Held, Such corporations as relators New York, Courts of Oyer and Terminer are by the laws of this State taxable upon the actual value of their capital stock, which has no legal situs out of the State where the corporation is created. The situs depends neither upon the nature or locality of the investment in which the capital of the company may

be made.

Assessment should be corrected as to

Held, That under the Judiciary Act of 1847 (Chap. 280, § 38), which provides that, except in the City and County of

shall be composed of a justice of the Supreme Court, who shall preside, the County Judge, the justices of the peace designated as justices of sessions, and that the presiding judge and any two of the others may hold the Court, the par ticipation of the justice in the trial after his absence for a day was error; if he had not returned and the others had con

stock of California Dry Dock Co., and tinued to the end, the trial could have

affirmed as to the rest.

The People ex rel. The Pacific Steamship Company v. The Commis sioners of Assessments.

July 1868.

been properly proceeded with, as they formed a competent court; but the County Judge being absent when the verdict was rendered and sentence pronounced, there was no legal Court pres

Opinion by Davis, P. J., Brady and ent within the provisions of the statute.

Daniels, JJ., concurring.

Aug. 24, 1875.

New York Court of Appeals.

CONVICTION.

Oyer and Terminer, when properly constituted. Absence of County Judge or justice of the session during the trial, effect of

The plaintiff in error was indicted,

Judgment of General Term, reversing judgment of conviction and granting a new trial, affirmed.

The People of the State of New York,
Plff's in error, vs. Shaw, Def't in

error.

Opinion by Rapallo, J.
October 5, 1875.

N. Y Superior Court-at Chambers.

COPYRIGHT.

tried and convicted of murder in the first It is an infringement to carry away

degree by a Court of Oyer and Terminer.

the literary property of another by com

mitting it to memory, and then using it ory. The proofs submitted fail to sustain for gain. Evidence of taking the ori- the defendants' position that they proginal production. duced their play by the dramatization of The facts appear in the opinion, which the original book. The next claim of the is given entire.

Curtis, J.

defendants is, that even if their version was made from memory, after witnessing the representation upon the stage of the original play, that they have the right to avail themselves of this course. The Court of Appeals, all the Judges conDe Witt

the question how far a spectator witness

ing a play might lawfully commit it to
memory, and then publish it to the world.
Learned judges have differed upon this
latter question, but it would seem to bet-
ter accord with justice and good morals,
that the carrying away in the memory, or
in the stenographic notes of a spectator,
of the contents of a play, unauthorized
by the owner, is an infringement of his
mode of procuring the literary property
proprietary rights. It is a surreptitious
of another, and when done from motives
of pecuniary gain, at the expense of the
*
is not defensible.

"A French author, Jules Verne, composed a story called 'Le Tour du Monde en quatre vingt jours.' With the assistance of a French dramatist, D'En-curring, held, in Palmer v. (47 N. Y., 582), that the property of an nery, he wrote a play, giving it the same name. These authors caused the drama author, or his assignees, in an unpublished to be translated into English, and called MS., is protected and governed in its use, 'Around the World in Eighty Days.' enjoyment and transfer, the same as other They then sold both versions of the play tation upon the stage of a dramatic compersonal property, and that the represento one Michelis, through whom the MS. of the English version, and all rights Position did not affect the MS. and the therein, for the United States, and the rights of the author therein, and was not Canadas, were transferred and assigned an abandonment, or dedication of it to the to the plaintiffs. The defendants have public, but the Court did not pass upon produced a play under the same title, and claim that it is a dramatization by them of the original story of Jules Verne, after he had published it, and made it the common property of the world. The play as written by Jules Verne and D'Ennery, and translated for them into English, has never been published with their consent, and it embraces various characters, incidents and scenes that are foreign to the original story The difficulty with the defendants' claim is that their version contains what is not found in the original story, but is found in the plaintiff's play, and, unless adopted from the latter, it could not be very satisfactorily accounted for. Again, this view, that the defendants are indebted to the plaintiff's play for their version, is strengthened by the deposition of the defendant Pillett, made in another proceed- what he reproduced in the defendant's ing, in another Court, and which the plaintiff produces, in which he says in effeet that, having attended in November, 1874, the representation of the play in Paris, he produced four-fifths of the scenes, incidents, business, plots, situations, effects, mechanical and otherwise, of the play, in his version of it from mem

owner,

*

These views were sustained by the majority of the Judges of the General Term of this Court in Palmer v. De Witt (2 Sweeney, 530), and seem to be applicable to so much of the case as rests upon the statements of the defendant Pillett, as to

version from memory.

continued until the further order of
The preliminary injunction should be
the Court, with $10 costs of motion to
the plaintiff."

French v. Conelly et al.
Sept. 17, 1875.

N Y. Supreme Court-at Chambers. N. Y. Superior Court-ut Chambers.

Authority of agent. When lost. Motion to continue temporary injunc

tion.

A proprietary or secured right was claimed by both parties to a play of H. J. Byron. Each claimed under a sale by Thomas H. French, the agent of the author.

Order to show cause why an injunction, restraining defendants from representing a play, should not be continued during the pendency of the action.

The facts will be found in the opinion which, in full, is as follows:

On behalf of the respondent, affidavits were read setting forth that a trans- Curtis, J.-The play was written in fer of the play had been made to the French, by Ernest Blum. The plaintiffs respondent, on the very day on which allege that it has never been published, the alleged transfer was made to Mr. and that the author sold the original Wallack, giving him the exclusive right manuscripts thereof, in the French and to produce the play in the United States; English languages, to one Michaelis, who, that, in accordance with that transfer, on the 11th of March, 1875, sold the same the music, pictures of the characters, &c., to the plaintiffs, for the United States, were sent to Mr. Daly from London by except New England. This statement of the agent of Mr. French, and that he the plaintiffs is confirmed by affidavits of immediately advertised the production Michaelis and the author. of the play at the Fifth Avenue Theatre, after having sent a written acceptance of the articles before mentioned; that he had ascertained that Mr. Wallack was negotiating for the purchase of the play, and that he informed him of his purchase, and telegraphed to Mr. Byron, who replied, acknowledging his purchase. Mr. French's affidavit set forth, that at the request of Mr. Wallack, he telegraphed to Mr. Daly, who was at that time out West, stating that he (Mr. Wallack) was anxious to have the play produced at Wallack's Theatre. The defendants produce the affidaceived a reply which he deemed favora- vit of Mr. Wall, stating the purble, and received $500 from Mr. Wallack. Mr. Daly soon after returned and refused to part with the play, whereupon he tendered the check to Mr. Wallack, who refused to accept it, fearing that the play might be exhibited at the Union Square Theatre. The plaintiff's affidavits showed the verbal sale and acceptance.

He re

Held, Donohue, J.; That French had no power to act as the agent of the author after the sale to Daly.

Wallack v. Daly. Sept. 16, 1875.

The defendants claim that early in February, 1875, one L. M. Bayliss purchased the English translation of the play from Michaelis in Paris, and that Bayliss employed one Wall to sell the same for the United States, and that he came to New York and sold it to the defendant Daly. All parties concede that the title was originally in Michaelis. The plaintiffs produce a bill of sale of the two manuscripts from Michaelis to Shook, dated March 11th, 1875, and acknowledged April 5th, 1875.

chase by Bayliss of the English ver-
sion in February, 1875. His affidavit
fails to show that he was personally
present in Paris at the time of such al-
leged sale to Bayliss, or that he in
reality had any other knowledge as to
whether such sale was
made except
from what Bayliss told him. Νο
affidavit from Bayliss is produced,
and the statement of the sale of the
manuscript to Bayliss does not appear to
me to be corroborated by any statements
of other parties having actual knowledge
of any such sale. There is no evidence