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tract obligations with an author, be correct, (and it seems to be well settled; see 1 High, Inj. § 713; Clemens v. Estes, 22 Fed. Rep. 899,) we see no reason why it should not also be subject to contract obligations with a purchaser. A title to a copyright carries no authority to break the faith of a contract. Suppose one man should buy the entire edition of a work, at a high price, under an agreement that no more should be printed, can there be any doubt that, as against his interest, a pubiisher would be restrained from putting out more copies afterwards, in violation of the agreement? But the principle is the same whether the purchaser be one or many. We have not found a case which exactly resembles this one. Limited editions are not common. It is not often that authors or publishers are willing to confine the sales of a publication to a given number. When they do so, the publication is usually of a kind which is not adapted to popular sale, but suits the taste of only a small number of buyers, and about which questions of a republication, for this reason, do not arise. The cases most nearly in point are those where a book is advertised to be sold only by subscription. In Publishing Co. v. Smythe, 27 Fed. Rep. 914, the complainant published Blaine's "Twenty Years in Congress," to be sold only by subscription to single buyers. The defendant surreptitiously procured a few copies, which he offered for sale in his book store, and the sale was enjoined. See, also, Clemens v. Estes, supra. If a publisher has the right to enjoin a sale made in violation of the terms of his agreement with his customers, when those terms are known, there must be a corresponding duty on his part to conform to the agreement; and hence it follows that he too may be restrained from violating it. In the case before us, subscriptions for the editions were obtained upon the inducement and representation that the tracts would not be reprinted. The publisher by his own contract, and in consideration of immediate sales, limited his right and privilege under the copyright. Conformably to the contract he could not himself reprint the tracts; nor can his assignee, for the latter takes no greater right under the assignment than the assignor had when he made it. While the copyright still exists for protection, it has been stripped of its value as property.

As to the third and fourth questions. In Stephens v. Cady, 14 How. 528, it was held that a copyright was not subject to sale on execution, but it could be reached by a creditors' bill. The court doubted, however, whether a transfer by sale under a decree would so pass the title as to protect a purchaser, unless by a conveyance in conformity with the statute. We do not think it necessary to pass upon these questions, inasmuch as, on the grounds we have above stated, the assignee can have but a naked legal title, if he has any. Our reply to the several questions is that Rider's right in the copyright was subject to his agreement with his subscribers not to publish more than 250 copies of each of said tracts; that, having done this, the copyright has nothing in it of value to pass to this assignee; that, whether the property of said Rider in said copyright has passed under the assignment or not, the assignee has not the right to sell said copyright so as to authorize the purchaser thereof to publish said tracts.

CONGDON v. AYLSWORTH.

(Supreme Court of Rhode Island. July 7, 1888.)

PRACTICE IN CIVIL CASES-PRODUCTION OF DOCUMENTS-NOTICE.

Under Pub. St. R. I. c. 214, § 45, providing that whenever either party to any proceeding shall set forth in writing, under oath, upon his knowledge or belief that the opposite party is in the possession of some document to which the applicant is entitled the court may order such opposite party to make answer as to what document he has, and whether he objects to its production, an order issued upon complainant's petition for the production of certain books and papers will not be vacated for irregularity in that no notice was given defendant before making the order, such notice not being required by the statute.

Bill in equity for an account.

Pub. St. R. I. c. 214, § 45, provides: "Whenever either party to any proceeding at law or equity in the supreme court, or to any proceeding at law in the court of common pleas, shall set forth in writing, under oath, upon his knowledge or belief that the opposite party is in the possession or control of some document to which the applicant is entitled, such court or a justice may order such opposite party, or if the same be a body corporate, then some oflicer thereof, to make answer on oath at or before a time to be fixed in said order as to what document he so has relating to the matter in dispute between the parties, or what he knows as to the custody of such document, and, if in his possession or control, whether he objects to the production of the same, and the grounds of such objection, and thereupon such court or justice may require the production of said document, or may compel the party having the same in his possession or control to allow the applicant to inspect the same, and if necessary to take examined copies of the same, and may make such further order thereon as shall be just.' The complainant, May 14, 1888, filed in this suit his petition under oath setting forth certain books and papers as held by the respondent which it was needful for the complainant to examine in order to prepare his case for trial, and asking for an order requiring the respondent to produce them. On this petition the following order was made May 14, 1888: "Upon the application in writing of the complainant in the above entitled suit it is ordered that the defendant therein, Hiram B. Aylsworth, answer on oath on or before May 19, 1888, at 10 A. M., as to what documents he has in his possession or control relating to the matter in dispute between the parties, and what he knows as to the custody of any such documents, and, if any such documents be in his possession or control, whether he objects to the production of the same, and the grounds of such objection; and, particularly, what documents mentioned in said complainant's application he has in his possession or control, and what he knows as to the custody of any such documents so mentioned, and if any of such mentioned documents be in his possession or control, whether he objects to the production of the same, and the grounds of such objection." No notice was given to the respondent of the petition. The complainant's bill waived answer under oath. June 13, 1888, the respondent moved that the order of May 14th be vacated for that "the same is irregular; that said complainant is not entitled to the same under his said bill, nor under the present state of the above entitled case.

John F. Lonsdale and Lorin M. Cook, for complainant. Augustus S. Miller and Arthur L. Brown, for respondent.

PER CURIAM. The defendant's motion to vacate the order is denied. The defendant, after having answered on oath whether he has the books and documents called for in his possession or control, and what he knows about their possession, will have the opportunity to contest the right of the complainant to their production. The statute does not require any notice to him before making the order. We are not able to see that the statute is in this respect unconstitutional, or that the necessity for notice is implied.

(16 R. I. 257)

HOWLAND v. SCHOOL-DIST. No. 3 OF LITTLE COMPTON.
(Supreme Court of Rhode Island. July 7, 1888.)

1. SCHOOLS AND SCHOOL-DISTRICTS-SCHOOL-SITE-CONDEMNATION-REFUSAL OF OWNER TO SELL.

Under Pub. St. R. I. c. 56, § 5, providing that before condemnation of land for school purposes the proprietor of the land shall refuse to convey the same, or be unable to agree with the district on the price, where the record of the district does not show that any person was authorized to agree on its behalf with the owner of the lot, but only that a trustee, who had no authority to represent the district, re

ported that he was unable to get any price on the lot, and the record of the school committee also fails to show that the district and owner could not agree, the condemnation proceedings will be quashed.

2. SAME-AUTHORITY OF TRUSTEE.

The acceptance by the district of the trustee's report does not amount to the adoption of his agency, nor supply the want of a prior appointment, there being nothing to show that the owner of the lot received the trustee as the representative of the district, and intended to have his refusal to treat with him regarded as a refusal to treat with the district.

3. SAME-EVIDENCE-PAROL-TO CONTRADICT RECORD.

The trustee testified that he was directed to buy the lot; that the owner refused to sell; and that he so reported to the district. Held inadmissible to contradict the records of the acts of the district and school committee, who, in condemning land for school purposes, were acting in pursuance of a special jurisdiction.

Exceptions from court of common pleas.

This was an appeal from proceedings of condemnation instituted by schooldistrict No. 3, in Little Compton, to obtain a lot for a school-house. After the decision of this court, (15 R. I. 187-190, 2 Atl. Rep. 549, 8 Atl. Rep. 338,) the appeal was tried by a jury in the court of common pleas, and a verdict was given for the school-district. The appellant Howland then brought the case into this court on a bill of exceptions, one of which, that considered in the following opinion, was to the refusal of the presiding justice in the common pleas to quash the proceedings, "because it did not appear that Howland, the owner of the land, could not agree with the district for the price of the land."

Charles Acton Ives, for appellant. Ziba O. Slocum, for appellee.

DURFEE, C. J. This is an appeal from the doings of school-district No. 3 of the town of Little Compton, and of the school committee of said town, in condemning a certain lot of land in said district, belonging to the appellant, for school purposes. The appeal was taken to the court of common pleas, and comes before us, after jury trial in that court, on exceptions. At the trial, after the records of the proceedings of the district and committee had been put in evidence, and verified, and other testimony had been introduced in support of condemnation, and the district had rested in its opening, the appellant moved that the proceedings of the district be quashed, because it did not appear that the appellant, owner of the land condemned, could not agree with the district for its price. The statute requires that, before condemnation, "the proprietor of the land shall refuse to convey the same, or cannot agree with the district for the price thereof." Pub. St. R. I. c. 56, § 5. The records of the district do not show that the district ever authorized any person to procure a conveyance, or to agree on its behalf with the appellant, but only show that at a meeting held three days after the school committee had selected the lot, the trustee of the district, who had been appointed to ask the school committee to select a lot, reported that he was unable to get any price on it. The record of the district is clearly defective in this particular, since a refusal to give the trustee a price cannot be held to be a refusal to give the district a price, and does not show that the appellant could not have agreed with the district, the trustee having no authority to represent the district. The counsel for the district contends that the acceptance of the trustee's report amounted to an adoption of his agency, and supplies the want of a prior appointment. We do not think the acceptance can have this effect, there be ing nothing to show that the appellant received the trustee as the representative of the district, and intended to have his refusal to treat with him regarded as a refusal to treat with the district. Broom, Leg. Max. *876; Mathewson v. Thompson, 12 R. I. 288, and cases there cited. Nor do we think the defect is aided by the record of the school committee, since their record does not state, or find it to be a fact, that the district and the appellant could not agree, but only that the trustee so stated when he applied for

the appointment of appraisers. The trustee was called as a witness by the district, and testified that "after the school committee located the site, I was directed to buy the land of Howland. I saw him, and he would not sell, and I reported to the district." The counsel for the district contends that the defect is supplied by this testimony. The district and the school committee were acting in pursuance of a special jurisdiction, and according to the ordinary rule it was for them to show affirmatively that they acted within their authority, or the contrary will be presumed. The weight of authority is that oral testimony is inadmissible to rebut this presumption, though there are cases which allow it in collateral proceedings. 1 Smith, Lead. Cas. *816, *817. Here the proceeding is not collateral, but direct, and in such a proceeding the rule applicable in all tribunals is that the jurisdictional facts must appear of record, or, upon objection duly taken, the cause will be quashed or dismissed, unless the defect can be cured by amendment. A demurrer to this proceeding, if it was the proper mode of objecting, would have to be sustained. Hawkins v. Hawkins' Adm'r, 28 Ind. 66, 73; Gunn v. Howell, 27 Ala. 663; Trimble v. Longworth, 13 Ohio St. 431, 436, 439. The court say, in the last-named case: "The distinction between cases where the validity of the record of a court of general jurisdiction is drawn in question collaterally, and those in which such record is directly impeached, by writ of error, or bill of review, is broad and well defined. In the one case jurisdiction is presumed prima facie, unless the record disproves it, while in the other, if it is denied, its existence must be proved by the record itself." And a fortiori must it be proved by the record if denied, where, as here, the jurisdiction is special. The district and the school committe, in condemning land for school purposes, perform a public function, judicial in its nature, and their records are the proper proof of their acts. We have come to the conclusion that the motion to quash ought to have been granted. The motion, however, was unreasonably delayed. It might have been made immediately after the proceeding was brought to the court of common pleas on appeal, and, if then made, much trouble and expense would have been avoided. Under Pub. St. R. I. c. 217, § 5, and c. 220, § 20, we can allow costs or not in a proceeding like this. We shall order the proceeding quashed, without costs. So ordered.

(16 R. I. 308)

RHODE ISLAND HOSPITAL TRUST Co. v. MANCHESTER.

(Supreme Court of Rhode Island. July 14, 1888.) ASSUMPSIT-MONEY HAD AND RECEIVED-When LIES.

A wife devised her property to her husband for life, with power to sell any part and appropriate the proceeds to his own use. He pledged certain bonds payable to bearer, to secure a loan, and afterwards asked the pledgees to take the bonds in payment of their debt, which they did; but upon the payment of the bonds, there being a surplus over the debt, they, out of friendship to the husband, who was now dead, remitted the surplus to his administrator. Held, that the executor of the wife could not maintain assumpsit for money had and received against the administrator of the husband for such sum, on the ground that the will gave the husband no power to pledge the bonds, as there was no privity between them or any duty or trust towards plaintiff growing out of the receipt of the same.

On petition for new trial.

Action by plaintiff, as executor of Mary R. Burnside, against defendant individually. Plaintiff was nonsuited, and petitions for new trial.

Arnold Green and Joseph C. Ely, for plaintiff. Francis Colwell, Samuel P. Cold, and Walter H. Barney, for defendant.

STINESS, J. Mary R. Burnside, by her will, proved April 4, 1876, gave to her husband, Ambrose E. Burnside, all her property, which included certain Buckner bonds, for life, with power and authority at pleasure to sell and transfer any part of the personal property, and to appropriate the proceeds to

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his own use. January 7, 1879, Burnside procured a loan from the Farmers' Loan & Trust Company, of New York, of the sum of $15,000, depositing 15 of said Buckner bonds, of the par value of $3,000 each, as collateral security. Burnside died September 13, 1881, at which time the Farmers' Trust Company still had the bonds, claiming that some time prior to his death he applied to the company to release him from his indebtedness, by taking the bonds, which were made payable to bearer, as their own property, in payment of his debt; and that the company agreed to this arrangement, afterwards treating the bonds as their own. Upon payment of the bonds, with their accrued interest, in January, 1883, there was a surplus or profit over and above the amount of the loan and interest up to that time, amounting to $5.641.84, which was remitted to the defendant as administrator on the estate of Gen. Burnside. A substantially similar transaction took place between Gen. Burnsile and William H. Osborn, of New York; the loan being $10,000 upon 10 bonds, and the sum remitted by him to the defendant being $3,844.75. Upon this stat of facts the plaintiff sues the defendant for the surplus remitted to him, as money had and received by him, to the plaintiff's use, claiming, under the decision in Trust Co. v. Bank, 14 R. I. 625, that the power of sale given to Gen. Burnside did not authorize him to mortgage or pledge the property left to him by his wife; that the transaction was a pledge, and that, consequently, the surplus arising from the pledge belongs to the estate of Mrs. Burnside and not to the defendant, because the bonds belonged to her estate. The plaintiff has suits now pending against the Farmers' Loan & Trust Company and Osborn, in New York, for the entire proceeds of the bonds. It appeared from the plaintiff's witnesses that the Farmers' Loan & Trust Company and Osborn claimed to have bought the bonds in the manner stated, and that they remitted the surplus to his estate, not because of any obligation to do so, but voluntarily, because, having made the loans from friendship to Gen. Burnside, they did not wish to retain a profit from the transaction. Evidence of these facts was offered to the jury, whereupon the defendant's motion for a nonsuit was granted, and the plaintiff now prays for a new trial.

The question is, assuming that the plaintiff can show that the bonds belonged to the estate of Mrs. Burnside, can it maintain an action of assumpsit against the defendant for the money which he has thus received, not on account of her estate, either intentionally or by mistake, but under a claim of right? The plaintiff makes the broad claim that when one can show an equitable claim for money he can maintain an action for it in assumpsit. Expressions to this effect are to be found in many of the opinions cited by the plaintiff, and yet it will be found, upon examination, that the cases themselves do not establish such a proposition. It is true that the action of assumpsit is not confined within the lines of actual promise and contract, but extends to many cases where a plaintiff can recover only upon equitable grounds, from which a promise and contract are implied. But it does not follow that an action of assumpsit will lie upon a merely equitable claim. It does not depend simply upon what a court or jury may think is fair and right. There must be some discernible limit to the action in its equitable form, and this limit appears, in general terms, to be in the nature of a trust; that is to say, when a defendant has received money, or its equivalent, under circumstances amounting to a trust to pay it over to the plaintiff, privity of contract arises from the relation of the parties, and a promise is implied. This distinction is clearly brought out in Nolan v. Manton, 46 N. J. Law, 231. Upon the plaintiff's showing that the defendant had received money from a bank, where it had been deposited in the name of her deceased husband, upon a promise to pay it over to an administrator, when one should be appointed, it was held that this was a trust in favor of the plaintiff administrator, and a nonsuit was properly refused. But the defendant, as her part of the case, denied that she received the money upon any such trust, and contended that it was her

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